Lucas v. South Carolina Coastal Council: the categorical and other "exceptions' to liability for Fifth Amendment takings of private property far outweigh the "rule".I. INTRODUCTION To what extent do federal, state, and local government regulations implicate the Takings Clause of the Fifth Amendment to the U.S. Constitution (stating that "nor shall private property be taken for public use, without just compensation").(1) Much of the continuing judicial and scholarly debate on this issue has focused on the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Council.(2) In 1993 I published a law review article that examined Lucas and all of the cases that had cited it in the year since it was decided.(3) I engaged in a bit of provocative hyperbole in naming the article Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing. I concluded that "the holding in Lucas is very narrow" and that "the case has very little practical effect on regulation of real property" (although it "has considerable practical effect in undercutting takings claims involving personal property")(4) Cases decided in the years since my article appeared have largely supported the narrowness of the circumstances in which the Lucas liability "rule" will have any effect on regulation of land. Moreover, the takings exceptions described in Lucas far outweigh the liability "rule" for both land and personal property claims. State and federal courts have denied a number of land takings claims based upon these "exceptions." Case law has not yet fully fleshed out the parameters of these exceptions, however, leaving considerable room for expansion. David Lucas, and the mining and timber industries and the American Farm Bureau Federation in amicus briefs,(5) argued that there is no nuisance exception to the Fifth Amendment's requirement that private property not be taken without just compensation.(6) On June 29, 1992, the United States Supreme Court unanimously rejected their argument. Justice Scalia wrote an opinion for a bare majority of the Court, in which Chief Justice Rehnquist and Justices White, O'Connor, and Thomas joined.(7) Justice Kennedy filed an opinion concurring in the judgment,(8) Justices Blackmun(9) and Stevens(10) filed dissenting opinions, and Justice Souter fried a separate statement.(11) The majority opinion reversed the South Carolina Supreme Court's decision (which had found no taking)(12) and remanded for a determination of whether the state's 1988 Beachfront Management Act(13) had effected a taking by banning all permanent habitable structures forward of the setback line that lay entirely landward of Lucas's property.(14) Lucas had purchased the property in 1986, two years prior to passage of the Act.(15) Because of the procedural posture of the case, Justice Scalia's majority opinion assumed, but did not hold, that the trial court was correct in finding that the statute deprived the plaintiff of all economically viable use and value of his land.(16) The Court held that it is never a taking to prohibit those activities that the claimant did not have the right to do under "background principles of the State's law of property and nuisance,(17) even if such a prohibition deprives a landowner of a// economic use and value of the land.(18) As Justice Scalia explained in the nuisance portion of this ruling, [al law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts--by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise.(19) Justice Scalia described "[t]he principal `otherwise'" as the "destruction of `real and personal property, in cases of actual necessity, to prevent the spreading of a fire' or to forestall other grave threats to the lives and property of others."(20) In addition, the Court stated that perhaps "a law of general application that ... destroys the value of land without being aimed at land ... cannot constitute a ... taking."(21) Previously, in Penn Central Transportation Co. v. New York City (Penn Central),(22) the Supreme Court analyzed takings claims using the following three factors: 1) the character of the governmental action, 2) the regulation's economic impact, and 3) interference with reasonable investment-backed expectations.(23) The Lucas Court revised the analysis in Penn Central by stating that [there are] two discrete categories of regulatory action [that are] compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical "invasion" of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation.(24) The Supreme Court has limited this category to cases that truly involve permanent physical invasions that result from compulsion.(25) The second category, which is the focus of this Article, includes actions that essentially are "the equivalent of a physical appropriation."(26) These actions "den[y] all economically beneficial or productive use of land."(27) My 1993 article noted that the Supreme Court's takings analysis would "likely change upon the retirement of Justice White at the end of the 1992-1993 term. Justice White was the fifth vote for Justice Scalia's bare majority opinion in Lucas."(28) I described how "Justice Kennedy, who may now hold the decisive vote on regulatory takings issues, expressed very different views in his Lucas concurrence than did Justice Scalia."(29) For example, in language particularly applicable to the protection of tidal wetlands, Justice Kennedy stated: The State should not be prevented from enacting new regulatory initiatives in response to changing conditions.... The Takings Clause does not require a static body of state property law .... property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit.(80) Professor Lazarus has expanded and elaborated on the importance of changes in the membership of the Supreme Court since Lucas, explaining that with Justice White's departure, "the slim Lucas majority vanished almost upon its arrival. There are no longer five Justices on the Court who clearly support Justice Scalia's rationale.... In the Supreme Court, one should expect Lucas to receive a very narrow reading."(31) The Court's 1998 decision in Eastern Enterprises v. Apfel(32) both illustrated the critical role of Justice Kennedy in the Court's takings jurisprudence and strongly suggested further limits on potential Lucas takings.(33) There was no majority opinion, with four dissenting Justices rejecting both takings and due process claims,(34) and four who would have found a taking, but who expressly declined to decide the due process claim.(35) Justice Kennedy's concurring opinion, which alone found a due process violation, agreed with the four dissenters in rejecting the takings claim because imposition of liability alone did not "operate upon or alter an identified property interest" and thus could not be a taking of property under the Fifth Amendment.(36) For practical purposes, the entire Lucas "rule" of liability is an exception to the general rule that the vast majority of land regulations (and regulations of real, personal, or intangible property) do not, even arguably, give rise to a takings claim. Nonetheless, the "exceptions" to takings liability that were set forth in Lucas are important. For example, background principles are an absolute defense to any takings claim because they define title to property, whether examined under a Lucas categorical analysis or any other basis. Many courts have applied Lucas to deny compensation for anything less than a total (or virtually total) elimination of value and use.(37) This approach is consistent with the Lucas Court's recognition that "early constitutional theorists did not believe the Takings Clause embraced regulations at all"(38) and "[p]rior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon,... it was generally thought that the Takings Clause reached only a `direct appropriation' of property . . . or the functional equivalent of a `practical ouster of [the owner's] possession."(39) Deferring to this original understanding, the Court traditionally confined land use takings claims to "extreme circumstances" when regulations imposed severe economic burdens analogous to direct physical appropriations.(40) As discussed herein, both Lucas affirmative categories--compelled, permanent physical invasions of land and land use statutes or regulations that deny all economically beneficial or productive use of an entire parcel of land--do not result in takings if they mirror restrictions that are inherent in the title to the property.(41) For defendants, background principles can also be an attractive way to defeat takings claims that could be resisted on other grounds. For example, because background principles are absolute bars to takings claims, they are threshold issues that can be decided at early stages of cases, such as on motions to dismiss or on targeted motions for summary judgment. II. THE LIMITED SCOPE OF POTENTIAL "LUCAS" TAKINGS It is important to recognize the rarity of the cases to which Lucas liability potentially applies. A. The Government Action Requirement The fact that the Fifth Amendment applies to government actions is fatal to some attempted takings claims. For example, the Federal Circuit has held that "ultra vires conduct cannot give rise to a Fifth Amendment taking."(42) Where federally protected animals destroy property, most courts have found no governmental action.(43) B. Lucas "Total Takings" Are Limited to Losses of AU Value and Use Whether any regulation ever results in a one hundred percent wipeout of the value and use of one hundred percent of a parcel of land is questionable. Even in Lucas, because of the procedural posture of the case, the Court assumed, but did not find, that the case fell within the "per se" category that the case announced(44) (and remanded the case for consideration of whether exceptions would apply).(45) Justice Kennedy and each of the other three Justices who discussed the Court's ruling doubted that the property was actually valueless.(46) There are several reasons why few, if any, regulations deprive owners of the entire economic value of their land. First, regulations may be limited in terms of scope, perhaps applying to an entire parcel of land, but only prohibiting particular uses of the land.(47) In Penn Central, the Court held that value derived from transferable development rights (TDRs) must be considered in determining whether or not a taking has occurred: [T]o the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings.... While these rights may well not have constituted "just compensation" if a "taking" had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation.(48) The Lucas Court repeatedly described its analysis as a situation where there was a total loss of both use and value of the entire parcel of land.(49) Thus, land use regulations that include a TDR program that maintains part of the value of regulated private property are distinguishable from the type of regulatory program that effects the "total taking"(50) at issue in Lucas. The Court's subsequent Suitum v. Tahoe Regional Planning Agency decision,(51) which involved an alleged "total taking" under Lucas, reaffirmed and extended the Penn Central decision.(52) Suitum explicitly did "not decide, whether or not these TDRs may be considered in deciding the issue of whether there has been a taking in [that] case."(53) The Court's discussion of ripeness, however, rests on the premise that the value of TDRs is relevant to the takings inquiry.(54) In holding that Mrs. Suitum did not have to pursue the agency's administrative process to fix the value of the TDRs and thereby make her claim ripe, the Court stated, "The valuation of Suitum's [TDR's] is ... simply an issue of fact about possible market prices, and one on which the District Court had considerable evidence before it."(55) Remanding the case to determine the value of the TDRs would have been beside the point if the value of the TDRs were not relevant to the takings claim. This reading of Suitum is confirmed by the three Justices who refused to join in this portion of the majority's opinion discussing this issue because they objected to the majority's analysis "on the ground that it necessarily required the Court to accept as valid the premise that TDRs are relevant to the question of determining takings liability."(56) Thus, the Penn Central ruling remains. The value of TDRs can defeat a potential takings liability claim? C. The Parcel as a Whole As Justice Stevens stated in his dissent in First English Evangelical Lutheran Church v. County of Los Angeles (First English),5s "[r]egulations are three dimensional; they have depth, width, and length.... It is obvious that no one of these elements can be analyzed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred."(59) The post-Lucas cases discussed below have rejected takings claims involving regulations that are limited in each dimension. Vertical or "depth" limitations, for example, only restrict air rights or surface support rights; horizontal or "width" limitations apply to part of the acreage in a parcel of property; temporal or "length" limitations involve prohibitions such as a two-year development moratorium.(60) Many years ago, the Supreme Court upheld "setback" or "buffer zone" regulations prohibiting development in specified areas(61)--restrictions that apply only to part of the acreage in a particular parcel.(62) Federal and state courts have broadly relied on this "parcel as a whole"(63) analysis in rejecting wetland and other takings claims. In Penn Central, the Supreme Court held that "'[t]aking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated."(64) A footnote in Lucas suggested that the issue might be revisited.(65) In Concrete Pipe & Products, Inc. v. Construction Laborers Pension Fund (Concrete Pipe),66 however, the Court subsequently cited this Penn Central language in unanimously reaffirming the "parcel as a whole" doctrine: "[A] claimant's parcel of property could not first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable."(67) Lucas liability rarely even potentially applies when the analysis is properly directed to the parcel as a whole. Many regulations simply do not apply to the entire parcel, measured spatially--both vertically (air space, surface, and mineral rights)(68) and horizontally (acreage).(69) For example, in Tabb Lakes, Ltd. v. United States,(70) the United States Court of Appeals for the Federal Circuit reaffirmed the parcel as a whole doctrine, holding that "[c]learly, the quantum of land to be considered is not each individual lot containing wetlands or even the combined area of wetlands."(71) The Court of Federal Claims also relied on Concrete Pipe in rejecting a claim that the water which federally protected wild homes drank was taken in its entirety.(72) In Forest Properties, Inc. v. United States,(73) the Federal Circuit refused to view 9.4 acres of submerged land as the relevant parcel, despite the developer's argument that it had different kinds of title to the lake-bottom (equitable ownership) and the dry land (fee), that it acquired its interest in the two entities in different transactions at different times, that different local government authorities had regulatory jurisdiction over the two locations, and that the two segments were capable of separate development.(74) The court concluded that "[w]here the developer treats legally separate parcels as a single economic unit, together they may constitute the relevant parcel."(75) Similarly, courts have denied takings claims after including differently zoned parcels in the parcel as a whole.(76) Courts have also denied takings claims by requiring inclusion of noncontiguous properties in the parcel as a whole.(77) These results are generally in accord with pre-Lucas precedent.(78) The United States Court of Claims resolved wetland takings cases by analyzing the returns from sales and development activity of the property as a whole, prior to the denial of a permit.(79) These and other appellate decisions of the Court of Claims are binding on both the United States Court of Appeals for the Federal Circuit (into which it merged) and on the trial-level United States Court of Federal Claims.(80) In Jentgen v. United States, the Court of Claims rejected a wetlands takings claim based on the remaining value of the property as a whole where the plaintiff was offered, but refused, "permits to develop over 20 acres of the 80 acres covered by his applications ... [and where] the tract contain[ed] approximately 20 additional acres of developable uplands which [could have been] developed without first obtaining Corps permits."(81) In Deltona Corp. v. United States, the plaintiff purchased a ten-thousand-acre parcel and then developed and sold substantial portions of it until two Clean Water Act(82) section 404(83) permits were denied.(84) In finding that Deltona was not deprived of the economically viable use of its land, the Court of Claims relied on the value and use of the parcel as a whole, including areas that had been developed, areas approved for development, and uplands whose market value was twice what Deltona paid for the entire restricted sections.(85) Thus, under established precedent, takings analysis must examine all rights in the property as a whole. In other words, a court must consider "vertical" rights, such as the air rights and surface support rights in a particular acre of land,(86) and "horizontal" rights, or all the acreage in a particular parcel.(87) Judge Plager has written two somewhat murky Federal Circuit opinions on the issue of considering the property as a whole.(88) In a 2-1 decision, Judge Plager vacated and remanded a trial ruling that found a taking in Florida Rock Industries, Inc. v. United States (Florida Rock), over the late Chief Judge Nies's compelling dissent, which would have reversed and found no taking.(89) Judge Plager suggested, in dicta, the possibility of "partial takings" that would analyze many variants of property rights separately for a regulatory taking, as courts do for a physical taking.(90) The Supreme Court subsequently denied the plaintiff's certiorari petition. In Clajon Production Corp. v. Petera (Clajon),(91) the Tenth Circuit specifically "reject[ed] the Florida Rock approach and adhere[d] to the more traditional analysis outlined in Penn Central" and Concrete Pipe.(92) As the Tenth Circuit recognized, the Supreme Court's 1994 Dolan v. City of Tigard decision(93) "clearly indicated that [the economically beneficial use] test must be viewed in light of defendant's entire property"(94) and the takings analysis must focus on "the entire bundle of rights associated with a parcel of land."(95) In Clajon, the challenged regulations only affected Clajon's ability to hunt on its property.(96) The Tenth Circuit ruled that the state game regulations did "not effect a destruction of all beneficial use of [Clajon's] `parcel as a whole' because [Clajon] still can `use [its] property for ranching, farming, and other livestock operations."(97) In Loveladies Harbor, Inc. v. United States,(98) the second decision by Judge Plager, the Court initially rejected the developer's argument that 11.5 acres--the area "for which the owner seeks a permit" to fill wetlands--should be the relevant parcel.(99) The Loveladies Harbor court "explicitly declined to adopt a bright-line rule to define the relevant property in takings analyses ... [and] embraced `a flexible approach, designed to account for factual nuances.'"(100) Originally, the developer in Loveladies Harbor purchased a 250-acre parcel.(101) Judge Plager excluded from consideration 1) 199 acres of the parcel because they had been filled and developed before the section 404 wetlands regulations were in effect, and 2) 38.5 acres that had been protected from development in exchange for the state's agreement to permit development of the remaining 12.5 acres.(102) According to the court, the denial of a federal permit effected a taking of the relevant 12.5 acres because it was left with de minimis value.(103) A persuasive commentary concluded that Judge Plager's analysis in Florida Rock and Loveladies Harbor was based on an "inaccurate definition of the deprivation denominator"(104) because it focused on the Lucas footnote, questioning the totality rule, while disregarding "the Supreme Court's post-Lucas affirmation of the totality rule in Concrete Pipe."(105) Another commentator agreed, but suggested that Loveladies Harbor may be properly limited to its facts, allowing segmentation only of parcels developed prior to the establishment of regulatory controls and parcels subject to restrictions that leave the owner with no economically viable use of those parcels. Such an interpretation ... would forbid a landowner from receiving constitutional compensation due to restrictions forbidding the development of property after the onset of a regulatory regime.(106) The Wisconsin Supreme Court essentially concurred with this analysis and distinguished Loveladies Harbor because the "court of appeals excluded from the parcel at issue lands that had already been developed and/ or sold [before the relevant statute was enacted], as well as lands for which the development fights had been dedicated to the state in return for a building permit on the remaining lands."(107) D. Temporary Moratoria and Prohibitions Are Not Lucas Takings In Agins v. City of Tiburon,(108) the Supreme Court rejected the idea that temporary limitations on the ability to sell property are a taking: Even if the appellants' ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decision making, absent extraordinary delay, are "incidents of ownership. They cannot be considered as a `taking' in the constitutional sense."(109) Courts have applied the "property as a whole" principle in a temporal sense,(110) denying efforts to rely on Lucas to support takings liability claims involving regulations that apply for a limited time. That is, even regulations that deny all economically viable use of an entire parcel of land measured in spatial terms do not effect takings if the denial is for a defined duration. In Woodbury Place Partners v. City of Woodbury (Woodbury),(111) the Minnesota Court of Appeals distinguished Lucas and held that a moratorium's limited two-year denial of all economically viable use was not a taking: "[T]he phrase `all economically viable use for two years' [is] significantly different from `all economically viable use' as applied in Lucas. The two-year deprivation of economic use is qualified by its defined duration."(112) Woodbury also distinguished the Supreme Court's decision in First English Evangelical Lutheran Church v. County of Los Angeles,(113) which recognized the concept of a "temporary taking."(114) Woodbury noted that the Supreme Court had expressly declined to decide whether the ordinance in First English amounted to a taking and later, after the remand, denied review of the lower California court's holding that because the total moratorium ordinance was specifically intended to be a purely temporary measure, it did not amount to a compensable taking.(115) In First English, the Supreme Court decided the appropriate remedy once a compensable taking had been recognized, but did not in any sense create a new liability standard for determining when a temporary taking occurs.(116) The Woodbury court interpreted First English to "presuppose that `temporary regulatory takings' means `regulatory takings which are ultimately invalidated by the courts.'"(117) Thus, the court reasoned, First English's reach is limited to takings that are retrospectively temporary due to subsequent invalidation or rescission.(118) It does not address regulations that are prospectively recognized as temporary, as is the case with the Woodbury moratorium.(119) On this point, the court noted that "Harvard Law Professor Frank Michelman has interpreted `the First English decision [as] not reach[ing] regulatory enactments, even totally restrictive ones, that are expressly designed by their enactors to be temporary.'"(120) This analysis is bolstered by Federal Circuit decisions. In the 1986 Florida Rock Industries, Inc. v. United States decision,(121) a five-judge Federal Circuit panel held that even land under a "permanent" prohibition might have market value to a willing buyer who might speculate that the prohibition would be lifted in the future.(122) Judge Plager's later opinion in the same case reaffirmed that takings analyses must consider the value of property to long-term investors who are not dissuaded by temporary or indefinite legal controls on development: Such broad-based disregard for current land use regulations suggests that, while parties contract in the shadow of the law, long term market trends in real estate values are not necessarily correlated to Government controls.... [T]he precise content of regulations at any given time may not be particularly important to those active in the market.(123) With the exception of one district court case currently on appeal,(124) no court has ruled that a development moratorium can result in a Lucastype taking.(125) Courts have also held that administrative procedures which temporarily delay the property owner from using the land as he would like do not result in a taking.(126) In addition, courts have rejected takings claims involving delays that result from erroneous assertions of permit jurisdiction.(127) An Alaska court held that the erroneous rejection of wastewater treatment and development plans did not constitute a taking.(128) E. Forfeiture and Fines Many federal, state, and local criminal and civil laws provide for fines and forfeiture of property, a category not specifically addressed in Lucas. In 1996 the Supreme Court rejected a takings claim raised by a wife who, with her husband, was a joint owner of an automobile in which her husband engaged in sexual activity with a prostitute.(129) The Michigan Supreme Court had allowed the automobile to be forfeited as a public nuisance, with no offset for her interest and notwithstanding her lack of knowledge of her husband's activity.(130) On appeal, the Supreme Court held that "[t]he government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain."(131) III. THRESHOLD--Is THERE A PROTECTED PROPERTY INTEREST? A. Background Principles of Property and Nuisance Law (and Emergencies) Lucas held that laws cannot take away claimed property "rights" that never existed, such as the "right" to create a nuisance that harms neighboring property or the public.(132) Thus, it is not a taking to forbid uses that are barred by "background principles" of either property law or nuisance law, because such forbidden uses were not part of the owner's title to the property to begin with.(133) 1. Destruction of Property by Necessity Lucas also recognizes an independent category of immunity from takings claims in its discussion of the government's power to abate nuisances, or "otherwise": "The principal `otherwise' ... [is] destruction of `real and personal property, in cases of actual necessity, to prevent the spreading of a fire' or to forestall other grave threats to the lives and property of others."(134) The California Supreme Court rejected a takings claim on this basis in a post-Lucas decision in which police tracked a felony suspect to a convenience store and, when negotiations failed, apprehended the suspect after lobbing tear gas and mace into the store, causing over $200,000 in damage.(135) 2. Lucas Immunity from Takings Liability is Truly Categorical The only truly categorical rule in Lucas is a negative one: If a property restriction repeats limitations inherent in the title to property, as defined by state and federal property and nuisance law and the emergency exception, the restriction never effects a taking. 136 To the extent that laws track these background principles, the property owner can have no takings claim even in a rare hypothetical case where the law deprived the owner of all economically viable use and value of a properly defined parcel as a whole.(137) Lucas explicitly stated that this categorical immunity from takings extends to "physical takings" as well: "[W]here `permanent physical occupation' of land is concerned ... we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowner's title."(138) Indeed, the Supreme Court has applied a similar analysis in rejecting a due process claim, holding that "[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in `property' or `liberty.'"(139) Because the background principle analysis examines the extent of the claimant's title,(140) the source of the pre-existing title limitation can be wholly unrelated to the source of the challenged regulation. Thus, the Court of Federal Claims denied a takings claim because a federal ban on a mining permit prevented a nuisance under state law: [W]hether the enforcement of these restrictions is accomplished by the state regulatory body or by federal officials acting under the authority of [the federal Surface Mining Control and Reclamation Act (SMCRA)] is not an issue relevant to the takings analysis. Under the holding of Lucas v. South Carolina Coastal Council, the test is whether the property use that is proscribed is based on "restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Where that condition is met, no compensation is owed.(141) It is essential to understand that Lucas categorical immunity from takings is a threshold issue. The fact that these negative categories may not apply in a given case in no way satisfies a plaintiff's heavy burden to demonstrate that a taking has occurred.(142) In such a case, the plaintiff only has the right to begin to make the necessary showing that the challenged governmental action has resulted in a taking of private property for public use that requires just compensation.(143) For example, in the post-Lucas case of Phillips v. Washington Legal Foundation,(144) the Supreme Court made it clear that it was deciding only one of three issues that were necessary to require just compensation for a taking: [W]e hold that the interest income generated by funds held in IOLTA accounts is the "private property" of the owner of the principal. We express no view as to whether these funds have been "taken" by the State; nor do we express an opinion as to the amount of "just compensation," if any, due respondents. We leave these issues to be addressed on remand.(145) The vast majority of post-Lucas cases deny takings claims for a variety of reasons.(146) Under Lucas, even cases that fall within a so-called affirmative takings liability category do not necessarily require payment of just compensation. For example, the Federal Circuit's 1999 Hendler v. United States decision(147) upheld the Court of Federal Claims' conclusion that the plaintiffs were not entitled to compensation for the value of their property that had been physically taken. This was because "the special benefits conferred on the [retained] property as a result of the taking ... more than offset the value of the easements [taken]--even under plaintiffs' valuation--and hence no compensation therefor is due."(148) B. The Supreme Court Has Continued the Lucas Court's Deference to State Courts as Having the Primary Role in Defining Background Principles The Lucas Court's categorical immunity for rules that parallel "background principles of the State's law of nuisance and property" reflects the Court's traditional deference to state definitions of the nature and scope of private property interests. The Lucas Court characterized this immunity as "surely unexceptional," particularly "[i]n light of our traditional resort to `existing rules or understandings that stem from an independent source such as state law' to define the range of interests that qualify for protection as `property' under the Fifth and Fourteenth Amendments."(149) The Court also deferred to the role of the state court in defining these principles: "It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land ... The question, however, is one of state law to be dealt with on remand."(150) In the years since Lucas was decided, the Supreme Court has consistently allowed state (and federal) courts leeway to define general or statespecific background principles, rejecting every petition for certiorari that has attempted to challenge decisions that denied takings claims based on background principles. The first of these petitions to reach the Court, in Stevens v. City of Cannon Beach,(151) was the only one that resulted in a dissent from the denial of certiorari. Seven Justices declined to join Justice Scalia's dissent that sharply questioned the Oregon Supreme Court's ruling that a developer had no right to build a seawall because the public's "doctrine of custom" use of dry sand is a background principle of property law under Lucas.(152) The Supreme Court subsequently denied a petition for certiorari after the Hawaii Supreme Court cited Stevens in ruling that private development rights were held subject to preexisting background Native Hawaiian gathering rights.(153) A 1995 denial of review involved an Iowa Supreme Court decision that a statute protecting an archeological burial site was a background principle as applied to a site that the state archaeologist did not discover until years after the property was purchased.(154) In 1997 the Court separately declined to review four cases in which New York State's highest court had ruled that a variety of preexisting statutes and ordinances are background principles that bar takings.(155) In 1998 the Court denied certiorari in Virginia Beach v. Bell,(156) in which the Virginia Supreme Court rejected a takings claim because the challenged Lucas-type Coastal Primary Sand Dune Zoning ordinance had been in effect when the plaintiff acquired the property.(157) The Court has also declined ample opportunities to review federal court decisions that have rejected takings claims based on background principles.(158) Many of these state and federal court decisions held that statutes were background principles under Lucas.(159) In light of Justice Kennedy's key role in the takings issues discussed above, his articulation of the need to expand background principles beyond common law in his Lucas concurrence may help explain why the Court has rejected these certiorari petitions. "The State should not be prevented from enacting new regulatory initiatives in response to changing conditions," Justice Kennedy wrote in Lucas.(160) "The Takings Clause does not require a static body of state property law.... Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit."(161) The Supreme Court has reiterated the doctrine that "[b]ecause the Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to `existing rules or understandings that stem from an independent source such as state law.'"(162) "[A]t least as to confiscatory regulations (as opposed to those regulating the use of property), a State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law."(163) C. Background Principles Include Federal and State Limitations Limits on state-created property rights may originate in either federal or state law. Lucas, which involved a South Carolina statute, understandably focused on state law. Justice Scalia's majority opinion, however, cited the Supreme Court's decision in Scranton v. Wheeler(164) as an example of a preexisting, background limitation upon title.(165) In Scranton, the navigational servitude was a federal law limitation on the landowner's title.(166) Citing Scranton, the Lucas Court stated that [w]here permanent physical occupation of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted "public interests" involved ... though we assuredly would permit the government to assert a permanent easement that was a preexisting limitation upon the landowner's title. Compare Scranton v. Wheeler, 179 U.S. 141, 163 (1900) (interests of "riparian owner in the submerged lands ... bordering on a public navigable water" held subject to Government's navigational servitude), with Kaiser Aetna v. United States, 444 U.S. [164,] 178-180 [1979] (imposition of navigational servitude on marina created and rendered navigable at private expense held to constitute a taking). We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land....(167) Court of Federal Claims Chief Judge Loren Smith recently ignored this holding in rejecting a government argument "that Florida Rock's rights must be reconsidered in light of the Supreme Court decision in Lucas, a holding which came after the court's findings in [the 1986 decision in Florida Rock Indus., Inc. v. United States]."(168) He rejected a background principle defense and found a taking in reliance on language from the Federal Circuit's 1986, pre-Lucas decision in the case--language that Lucas superseded: The Clean Water Act in its present form, of course, goes far beyond the concerns of navigation, and such concerns are not implicated in this case, but in any event, the effect of Kaiser Aetna v. United States ... is that the old "navigation servitude," often used to excuse what looked suspiciously like takings, is no longer available for that duty in regulatory takings cases.(169) The Third Circuit has found that the federal government's exercise of its navigational servitude to prohibit the use of a coal loading facility on the Monongahela River was in accord with a background principle that precluded a taking.(170) Other post-Lucas federal court decisions have acknowledged that "background principles" include federal law limitations on property owners' state-created property rights.(171) A federal district court rejected a takings challenge to the Army Corps of Engineers's order to remove part of the plaintiff's wharf, holding that the wharf owner's state property rights to land submerged under private structures in the water remained subject to "the federal government's control for purposes of navigation and commerce."(172) D. Background Principles of Nuisance Law In denying a takings claim, the Supreme Court's 1987 Keystone decision relied in part on the nuisance-type nature of the mining under homes that was prohibited by state statute.(173) In a recent coal mining case, the United States Court of Federal Claims held that a takings claim was absolutely barred under a state nuisance law analysis that relied upon a state water quality statute that invoked the public trust.(174) In denying a motion for rehearing, the court held that [t]he property use that was denied here, the conduct of a surface mining operation that held out a "high probability" of introducing acid mine drainage into the Sewanee Conglomerate aquifer, is not a property use plaintiff could legitimately claim it had a right to pursue in consonance with relevant state property and nuisance principles.(175) Other courts have also rejected takings claims when such claims are precluded by "background principles" of state nuisance law.(176) As discussed below, a Rhode Island trial court denied a takings claim because filling eighteen acres of salt marsh would constitute a public nuisance.(177) A Florida appellate court has distinguished an earlier decision and applied Lucas to find that a city's six month closure of a motel with a history of repeated prostitution and drug activity abated a public nuisance and was not a compensable temporary taking of private property.(178) Because "prostitution and drug-related activities were inextricably intertwined with the motel," the court refused to certify a conflict with an earlier case that did "not include any discussion of inextricable intertwining of proscribed uses with other, valid, uses."(179) E. Background Principles of Property Law Lucas background "property law" limitations on title that preclude a taking include those that have nothing to do with nuisances. For example, courts reject takings claims based on an interest in property relating to government leases or permits because there is no compensable property right extending past the terms of the agreement.(180) Other courts have reached similar results, rejecting takings claims for failure to establish the presence of a protected property interest, without explicitly utilizing the Lucas Court's analysis.(181) Similarly, the United States Court of Federal Claims has found that, under the logically antecedent (background principles) inquiry in Lucas, there was no compensable expectancy to exclusive use of a grazing allotment on federal land that would support a claim that the permittees' water rights had been taken by wild homes: "Certainly, wild homes were present within the ... [a]llotment prior to enactment of the Wild Horses Act, and, furthermore, all of plaintiffs' range improvement permits are by their express terms subject to then existing and subsequently approved rules and regulations."(182) In Stevens v. City of Cannon Beach,(183) the Oregon Supreme Court rejected a claim that denying permits to build a seawall to enable the development of lots for motel or hotel use constituted a taking: When plaintiffs took title to their land, they were on notice that exclusive use of the dry sand areas was not a part of the "bundle of rights" that they acquired, because public use of dry sand "is so notorious that notice of the custom on the part of persons buying land along the shore must be presumed."(184) This application of the doctrine of custom is a Lucas "background principle" of property law, and "plaintiffs have never had the property interests that they claim were taken."(185) The Hawaii Supreme Court subsequently cited Stevens in ruling that private development rights were held subject to preexisting background Native Hawaiian gathering rights. (186) The Supreme Court denied certiorari even though the Hawaii Supreme Court had concluded that "the Western concept of exclusivity is not universally applicable in Hawaii" and admitted that this "premise clearly conflicts with common `understandings of property.'"(187) Under Lucas, background principles of property law should include Native American treaty fights. Treaty rights include both outright tribal beneficial ownership(188) and hunting, fishing, and gathering rights on land owned by others.(189) For example, the Supreme Court's 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians can be understood in these terms.(190) Although the Court did not explicitly employ the background principles analysis, the title that the United States acquired (and subsequently passed along to the state and private landowners) can be seen as never having included the right to exclude Chippewas who are hunting, fishing, and gathering.(191) Background principles of property law should include a variety of other limitations on title. For example, courts have held that when areas of riparian high ground erode away and revert to tidelands or navigable waters, the eroded areas "cease to belong to the former riparian or littoral owner."(192) Governments have long regulated fish and wildlife, including hunting and fishing licenses and prohibitions to protect species. Common law (and statutory law) throughout the nation is that "the general ownership of wild animals, as far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity as the representative and for the benefit of all its citizens in common."(193) These public ownership rights limit private rights and defeat takings claims.(194) Laws protecting and regulating wildlife are a traditional, common component of state property law. State courts have long recognized that all property is subject to the government's power to regulate wildlife.(195) Thus, limitations that are in accord with background principles of either property or nuisance law cannot be a taking. F. Wetland Laws and Background Principles One of Justice Scalia's examples of "background principles" in the majority opinion in Lucas clearly refers to at least certain denials of permits to dredge and fill lake beds and other wetlands under section 404 of the Clean Water Act.(196). [T]he owner of a lake bed ... would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land.... Such regulatory action may well have the effect of eliminating the land's only economically productive use, but it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles.(197) Lucas defined nuisances as harms "to public lands and resources, or adjacent private property, posed by the claimant's proposed activities."(198) Nuisance doctrine applies particularly well to congressional protection of specifically limited and defined wetland areas. Courts have recognized that section 404 lessens and avoids harms by preserving wetlands that control floods, abate storm surges, cleanse polluted runoff, control sediment, provide groundwater recharge and discharge, and prevent loss of rare and endangered species, waterfowl, and other wildlife.(199) In practical terms, wetland preservation is vital to the survival of endangered species.(200) "Many endangered species rely on our wetlands for their survival and reproductive success. Without the wetlands, we are all but assured of their extinction."(201) Two federal circuits have found that loss of isolated wetlands causes harm.(202) At least one court has explicitly denied a wetland takings claim on Lucas background principle nuisance grounds. In Palazzolo v. Coastal Resources Management Council,(203) a Rhode Island trial court reasoned that filling 11.4 acres of salt marsh would constitute a public nuisance because it would reduce shellfish populations and harm filtering mechanisms, resulting in increased nitrate levels in a pond and a threat to the groundwater drinking supply.(204) G. Public Trust and Just v. Marinette County Both before and after Lucas, courts have relied upon the public trust doctrine to deny takings claims, especially as to tidal wetland property.(205) For example, a Florida appellate court rejected a takings challenge to prohibitions on offshore drilling on the ground that the public trust doctrine permitted the legislature to exercise without compensation its "authority to protect the lands held in trust for all people."(206) Courts have also recognized that the public trust doctrine limits private rights in a nontakings context.(207) Background principles should also include the related state law principle, recognized in the landmark Just v. Marinette County case,(208) that protection of wetlands is not a taking because "[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others."(209) Commentators have cited Just as a preexisting limitation on title both before and after Lucas.(210) Fred Bosselman, David Callies, and John Banta, in their 1973 seminal work, The Takings Issue, discussed Just under the heading "Preexisting Title," as an example of a case in which "governmental agencies can avoid the takings issue ... by reestablishing a pre-existing state interest in the land."(211) Post-Lucas legal commentators have cited Just as a Lucas "background principle,"(212) and have identified Just as the "leading case justifying the application of natural use limitation as part of the background principles of property law."(213) The Just plaintiffs purchased lake front property in 1961.(214) Six years later, Marinette County passed a Shoreland Zoning Ordinance(215) that requires permits for activities that involve substantial changes to the natural character of the wetlands adjacent to navigable waters.(216) The Supreme Court of Wisconsin held that enforcement of the ordinance would not cause a taking: This is not a case where an owner is prevented from using his land for natural and indigenous uses. The uses consistent with the nature of the land are allowed and other uses recognized and still others permitted by special permit .... The changing of wetlands and swamps to the damage of the general public by upsetting the natural environment and the natural relationship is not a reasonable use of that land which is protected from police power regulation.(217) Other state courts have denied wetlands takings claims in explicit reliance upon the Just principle that "[a]n owner of land has no absolute and unlimited right to change the essential nature of his land."(218) For example, the New Hampshire Supreme Court has repeatedly relied upon the Just analysis, including in a 1989 decision in which then-New Hampshire Supreme Court Justice Souter joined.(219) Likewise, the Wisconsin Supreme Court has reaffirmed and applied its Just decision irrespective of "whether the regulated land is a wetland within a shoreland area, or land within a primary environmental corridor, or an isolated swamp."(220) The South Carolina Supreme Court's 1984 Carter v. South Carolina Coastal Council decision(221) quoted Just in denying a wetland takings claim.(222) Carter recognized that "the legislature enacted the Coastal Zone Management Act in response to its recognition of the detrimental effect the uncontrolled use of coastal wetlands would have on the public welfare."(223) As of this writing, briefing is concluded in McQueen v. South Carolina Coastal Council,(224) in which the South Carolina Supreme Court accepted discretionary review of a two to one decision of the state court of appeals that held that the United States Supreme Court's Lucas decision had "emasculated" the state supreme court's Carter ruling.(225) The court of appeals' majority opinion failed to explain how Lucas "emasculated" Carter, failed to consider the Lucas Court's deference to state law background principles, and failed to provide a citation to legal authority for the "rights" perceived to be held by McQueen when it erroneously stated that "just as the right to build was one of Lucas's rights, the right to add a bulkhead and fill were McQueen's at the time of purchase."(226) No other court has agreed with the court of appeals' majority's conclusion in McQueen that Lucas "emasculated" the Just/Carter analysis. Indeed, in a post-Lucas decision, a Florida appeals court relied upon the Just analysis in rejecting a takings claim.(227) In addition to wetlands and coastal areas, courts should also rule that the public trust doctrine includes wildlife resources.(228) H. Background Principles of Nuisance (and Property) Law Evolve In deciding what limits on property uses are in accord with background principles of property and nuisance law, Lucas recognized that courts should account for newly recognized environmental dangers: "The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer' so [)]."(229) An example cited in Justice Scalia's majority opinion apparently falls into this category: no compensation would be due to "the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault."(230) Therefore, because nuisance law is continuously evolving, Justice Scalia's analysis in Lucas can negate compensation when new regulations prohibit uses that were not barred by "background principles" at the time a parcel was purchased. As nuisance law evolves, it may grow to encompass acts which, under today's standards, are not considered nuisances.(231) For example, nuisance law may have evolved to consider that nuisances include activities such as destruction of a species that is found to harbor a life-saving drug. As Justice Stevens stated in his dissent in Lucas, "[n]ew appreciation of the significance of endangered species ... shapes our evolving understandings of property rights."(232) In rejecting a Commerce Clause challenge to ESA protection of a fly that exists only in California, separate opinions by Judges Patricia Wald and Karen LeCraft Henderson both rely in part on evidence of such a new appreciation of the significance of endangered species.(233) Judge Wald found that such protection prevents "the channels of interstate commerce from being used for immoral or injurious purposes"(234) and cited legislative history and subsequent evidence of the incalculable value of species as sources of "potential cures for cancer," existing medicines, and genes.(235) Judge Henderson stated that "the effect of a species' continued existence on the health of other species within the ecosystem seems to be generally recognized among scientists."(236) The Lucas Court's reliance on the Restatement (Second) of Torts to define nuisance law(237) has additional limiting implications for takings claimants. First, the Restatement's evolving definition of nuisance(238) is broader than the definition upon which some lower court decisions have relied.(239) Second, nuisance law, and thus the scope of the immunity from takings liability, varies from state to state. I. Preexisting Statutes as Background Principles The Restatement (Second) of Torts also recognizes that statutory compliance is a factor in determining whether an activity constitutes a public nuisance.(240) The cases on which the Restatement is based rely on state statutes in determining whether a particular use is a nuisance. Therefore, Lucas does not foreclose a legislative role in defining nuisance, despite the concerns of Justices Blackmun(241) and Stevens,(242) in dissent. Justice Scalia's majority opinion, however, states that background principles must be more than merely "the legislature's declaration that the uses [the property owner] desires are inconsistent with the public interest."(243) Virtually every court that has specifically decided the issue has found that the Lucas inquiry into "background principles" and limitations inherent in title to property includes "preexisting" state and federal statutes that were in' effect when the claimant acquired the property at issue.(244) Indeed, the Tenth Circuit's pre-Lucas decision in United States ex rel. Bergen v. Lawrence(245) found that the action was not a taking because it "abated a nuisance which was proscribed by federal [statutory] law."(246) The Iowa Supreme Court's 1994 Hunziker v. State decision(247) ruled that a preexisting state statute authorizing protection of human remains of national or state significance was a Lucas background principle of property law that limited the plaintiffs' title and precluded a taking.(248) The statute was "in existence and therefore part of Iowa's property law"(249) before the plaintiffs purchased the land, so that "when the plaintiffs acquired title, there was no right to disinter the human remains and build in the area where the remains were located."(250) The Hunziker court applied this principle to the case even though it was not until years after the property was purchased that the state archaeologist made the significant find and took action denying permission to disinter the human remains.(251) This situation is analogous to one of the two specific examples of a background principle in Lucas.(252) Justice Scalia's majority opinion stated that no compensation would be due to "the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault."(253) Thus, for example, background principles should bar claims based on application of preexisting species protection statutes even if it was not discovered that the property was habitat for a protected species until years after the property was purchased. The Federal Circuit reached a similar result in ruling that a developer who purchased land in 1973, shortly before the Endangered Species Act was passed, lacked reasonable investment-backed expectations needed to claim that a taking resulted from the denial of a wetland permit because of species that were listed in 1990 and 1991.(254) Across the country, state courts have repeatedly denied takings claims because statutes existing at the time when the landowner acquired its property are background principles. For example, the South Carolina Supreme Court repeatedly ruled that plaintiffs did not acquire the use interests to build a bulkhead or to fill critical area tidelands without a permit.(255) The Rhode Island Supreme Court has also held that a state wetlands statute is a background principle that precludes a taking.(256) The Virginia high court has followed suit with two decisions denying takings claims because preexisting statutes constitute background principles.(257) In Virginia Beach v. Bell, the municipal sand and dune protection ordinance was similar to the one in Lucas, but the property was purchased after the law was enacted.(258) The Virginia Supreme Court distinguished Lucas on those grounds and held that because the plaintiffs had not been deprived of the right to develop the property, there was not a compensable taking; essentially, the "regulatory restriction was in Bell's and the Trustee's chain of title."(259) New York State's highest court ruled on February 18, 1997 in four cases that preexisting statutes are background principles that bar takings (the Supreme Court separately declined to review all four cases).(260) In Gazza v. New York State Department of Environmental Conservation, the court ruled that the enforcement of existing wetlands statutory restrictions was not a taking: [S]ince the enactment of the wetland regulations, the only permissible uses for the subject property were dependent upon those regulations which were a legitimate exercise of police power. Petitioner cannot base a taking claim upon an interest he never owned. The relevant property interests owned by the petitioner are defined by those State laws enacted and in effect at the time he took title and they are not dependent on the timing of state action pursuant to such laws.(261) Moreover, the court in Anello v. Zoning Board of Appeals reasoned that "[a]ny compensation received by a subsequent owner for enforcement of the very restriction that served to abate the purchase price would amount to a windfall, and a rule tolerating that situation would reward land speculation to the detriment of the public."(262) In Kim v. City of New York, the court concluded that [i]t would be an illogical and incomplete inquiry if the courts were to look exclusively to common-law principles to identify the preexisting rules of State property law, while ignoring statutory law in force when the owner acquired title.... To accept this proposition would elevate common law over statutory law, and would represent a departure from the established understanding that statutory law may trump an inconsistent principle of the common law.(263) A New York intermediate appellate state court applied this principle to reject a takings claim brought by an individual who acquired the regulated property from a corporation that he completely controlled, because when the individual acquired the property, it was subject to regulation.(264) Federal courts, including the Eighth and Ninth Circuits, have also denied takings claims because statutes and ordinances in effect when property is acquired define background principles under Lucas.(265) The Fourth Circuit cited Lucas's background principles limitation on takings claims in holding that [w]hen IPC purchased its land in 1973 and 1974 and acquired its title, before annexation by the Town, it had no legitimate expectation that that land came with the public provision of sewer service. Instead, inherent in that title was the implied limitation that the owner would have to provide for its own water and sanitary waste disposal. This same factual basis also supports the conclusion that IPC did not suffer the defeat of its investment-backed expectations. When IPC purchased the land in 1973 and 1974, that investment could not have been backed by the expectation that its land would be provided with public sewer service.(266) The Federal Circuit recognized, in M & J Coal Co. v. United States,(267) that a federal statute constituted a Lucas background principle of property or nuisance law: [A]t the time M & J acquired its mining rights.., it knew or should have known that it could not mine in such a way as to endanger public health or safety and that any state authorization that it may have received was subordinate to the national standards that were established by [the Surface Mining Control and Reclamation Act of 1977 (SMCRA)] and enforced by [the Office of Surface Mining Reclamation and Enforcement].(268) Thus, the coal company was limited in the use of its land by principles set out in the federal statute.(269) Since then, cases in the Federal Circuit have muddied the situation somewhat. Judge Plager's plurality opinion in the court's en banc rehearing in Preseault v. United States(270) stated in dicta(271) that at least in the context of a physical taking, "[t]he background principles referred to by the Court in Lucas were state-defined nuisance rules."(272) Judge Plager's language is patently inconsistent with the Lucas Court's holdings discussed herein, including the Court's repeated references to property and nuisance law and its citation of a federal navigational servitude decision as a background principle that would defeat a physical takings claim. In light of changes in the Federal Circuit's membership, it is not at all clear what the majority of the en banc court would hold in a similar takings case today.(273) Indeed, Judge Plager subsequently recognized that Lucas could not be limited to state common law.(274) His 1997 opinion for the court rejected a takings claim involving extinguishment of choses in action against Iran, stating that it does not strain Lucas beyond its intended purpose to recognize that a similar principle may apply to "property" that arises through consensual international transactions as it does to property interests created by domestic law. Certain sticks in the bundle of rights that are property are subject to constraint by government, as part of the bargain through which the citizen otherwise has the benefit of government enforcement of property rights. As the trial court correctly observed, those who engage in international commerce must be aware that international relations sometimes become strained, and that governments engage in a variety of activities designed to maintain a degree of international amity.(275) Judge Plager's 1999 Forest Properties decision used broad language to describe this issue: "In a regulatory taking the government prevents the landowner from malting a particular use of the property that otherwise would be permissible."(276) A district court recently summed up the state of the law on this issue while denying that either California or Nevada common or statutory law would have prevented the plaintiffs from constructing single-family residences on the shores of Lake Tahoe in order to prevent erosion: What the Lucas opinion does not make completely clear, but which most courts since appeared to have accepted, is that "newly legislated or decreed" restrictions on land use can also constitute "background principles" of state law for this purpose--so long as those restrictions became law before the property owner actually purchased the property subject to the restrictions.(277) Even the General Counsel of the National Legal Center for the Public Interest, a "property rights" group, recognized that "if a statute had been enacted prior to acquisition... [the] owner cannot claim that [a] right was `taken' from him, since he never had it."(278) Background principles should also include constitutional provisions. For example, the Supreme Court of Montana has held that Article II, section 3 and Article X, section 1 of the state constitution established a fundamental right to a clean and healthful environment, and that state or private action that implicates either provision is subject to strict scrutiny.(279) IV. REASONABLE INVESTMENT-BACKED EXPECTATIONS A. Necessity in All Cases In Good v. United States,(280) the Federal Circuit recently reaffirmed its analysis in Loveladies Harbor, Inc. v. United States,(281) stating: The Lucas Court, however, clarified that by "categorical" it meant those "categories of regulatory action [that are] compensable without case-specific inquiry into the public interest advanced in support of the restraint." A Lucas-type taking, therefore, is categorical only in the sense that the courts do not balance the importance of the public interest advanced by the regulation against the regulation's imposition on private property rights. The Lucas Court did not hold that the denial of all economically beneficial or productive use of land eliminates the requirement that the landowner have reasonable, investment-backed expectations of developing his land. In Lucas, there was no question of whether the plaintiff had satisfied that criterion.(282) The Lucas Court's description of what is meant by "categorical" as "compensable without case-specific inquiry into the public interest advanced"(283) immediately follows a quotation from Penn Central.(284) If Justice Scalia had meant for "categorical" treatment to eliminate the expectations factor of Penn Central he would have said so (or at least described "categorical" in more absolute terms). Justice Kennedy's Lucas concurrence stated that "[w]here a taking is alleged from regulations which deprive the property of all value, the test must be whether the deprivation is contrary to reasonable, investment-backed expectations."(285) Thus, Justice Kennedy's Lucas concurrence agrees with the Good/Loveladies Harbor analysis. Indeed, if reasonable investment-backed expectations were not an essential element in Lucas takings claims, speculators who purchased property for a nominal sum that reflected the impact of anticipated or existing restrictions could receive windfalls from takings claims. B. Preexisting Statutes and Regulations as Defeating Reasonable Investment-Backed Expectations As discussed above, courts increasingly recognize that takings claims cannot be based upon denial of permission to violate statutes and regulations that were in effect when the property was acquired, because such restrictions are considered Lucas background principles.(286) Other courts reach a similar result by finding a lack of reasonable investment-backed expectations.(287) Thus, courts reject takings claims involving land that was acquired with actual or constructive knowledge of existing or pending regulatory limitations.(288) There can be no reasonable investment-backed expectation to use the property in a manner that is inconsistent with these provisions that were in effect when the property was purchased.(289) Historical uses can limit claims(290) regardless of whether the challenged law was in effect when the claimant acquired the property.(291) For purposes of determining whether an owner has reasonable investment-backed expectations, the time of purchase is when the current owner acquired the property, even if the current owner acquired the property from a closely related predecessor.(292) Also, the fact that a challenge involves laws or restrictions that affect property subsequent to the owner's purchase does not establish a takings claim. The Supreme Court has repeatedly rejected takings claims because "'[t]hose who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end.'"(293) Indeed, even Justice Scalia's majority opinion in Lucas stated that, at least with respect to anything less than total deprivations, an owner of land (or other types of property) "necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers."(294) Other courts have followed suit.(295) If a viable economic use for the property remains, plaintiffs' takings claims can be barred--whether or not the regulation applied to the property at the time of purchase. For example, a developer who had purchased a building weeks before a new, stricter landmark ordinance took effect was held to have no takings claim.(296) This analysis was subsequently applied to defeat a takings claim where a building was purchased seven months prior to landmark designation.(297) The Supreme Court has repeatedly held that property owners can recover for a taking only if they successfully demonstrate that they purchased their property in reliance on the nonexistence of the challenged regulation. In Ruckelshaus v. Monsanto Co.,(298) the Court stated that "the force of [the lack of reasonable investment-backed expectations] is so overwhelming ... that it disposes of the taking question."(299) As the Federal Circuit reasoned in Loveladies Harbor,
[t]he third criterion [for determining when a regulation goes "too far"],
interference with distinct investment-backed expectations, was a way of
limiting takings recoveries to owners who could demonstrate that they
bought their property in reliance on a state of affairs that did not
include the challenged regulatory regime....
In legal terms, the owner who bought with knowledge of the restraint
could be said to have no reliance interest, or to have assumed the risk of
any economic loss. In economic terms, it could be said that the market had
already discounted for the restraint, so that a purchaser could not show a
loss in his investment attributable to it.(300)
Subsequent decisions have applied the Loveladies Harbor analysis to deny takings claims.(301) In Good v. United States,(302) the Federal Circuit reaffirmed its analysis in Loveladies Harbor that "[f]or any regulatory takings claim to succeed, the claimant must show that the government's regulatory restraint interfered with his investment-backed expectations in a manner that requires the government to compensate him."(303) This includes post-Lucas cases "where the challenged regulation eliminates virtually all of the economic value of the landowner's property."(304) "The Lucas Court did not hold that the denial of all economically beneficial or productive use of land eliminates the requirement that the landowner have reasonable, investment-backed expectations of developing his land."(305) Good held that a takings claim was barred by the lack of reasonable investment-backed expectations under the Endangered Species Act (ESA),(306) a statute that was not enacted until shortly after the claimant purchased the property in question.(307) The court found that Good could have no reasonable, investment-backed expectations "inview of the regulatory climate that existed when [he] acquired the subject property."(308) Wetland permits were required in 1973, and "rising environmental awareness translated into ever-tightening land use regulations. Surely Appellant was not oblivious to this trend."(309) Thus, as a matter of law, a plaintiffs acquisition of property in the face of an existing or an anticipated regulatory scheme can block a takings claim. The Federal Circuit held that a purchaser is not only on notice about the laws and regulations in place when he purchases the land, but also that regulatory standards can become more stringent over time.(310) The Good court also described how the plaintiff had "acknowledg[ed] the difficulty of obtaining approval for his project, then wait[ed] seven years, watching as the applicable regulations got more stringent, before taking any steps to obtain the required approval."(311) In this regard, the court reaffirmed the appellate Court of Claims's previous denial of a wetlands takings claim brought by a developer who acquired property at a time when Army Corps permits were required: Although at that time Deltona had every reason to believe that those permits would be forthcoming when it subsequently sought them, it also must have been aware that the standards and conditions governing the issuance of permits could change. Deltona had no assurance that the permits would issue, but only an expectation.(312) As a practical matter, the Good court's reaffirmation and application of the Loveladies Harbor and Deltona analysis should bar most takings claims involving statutes that have been in effect for some time. Either plaintiffs will lack the necessary expectations because they have acquired the property recently, after the statute was passed, or like Good, they acquired the property before the statute was passed and did not attempt to develop it until years later when the statute was well-established.(313) A review of the first eighty state cases that cite to Lucas showed that "only three can be said to have relied on Lucas in finding a regulatory taking."(314) One of these three cases was reversed on appeal by the Colorado Supreme Court, based upon a finding that is closely related to rulings that statutes are background principles.(315) The court ruled that there had been no reasonable investment-backed expectations, and hence no taking, in light of Colorado and federal statutes addressing uranium mine tailings.(316) Indeed, regulations that are in place at the time property is acquired are part of the clay from which reasonable investment-backed expectations are molded.(317) A property owner need not be compensated for loss of value or a development opportunity that he could not have expected his land to have when he acquired it.(318) Thus, numerous cases have found that actual or constructive notice of a regulatory program defeats investment-backed expectations and hence takings claims. These decisions should apply to defeat many claims, especially claims in which the property was acquired with knowledge that regulatory restraints apply to the property at issue. As the Federal Circuit stated in denying a takings claim in Branch v. United States,(319) [t]o treat every statutory change in the rules of liability as a taking would cripple the ability of federal and state legislatures to adjust the benefits and burdens of economic life. In the words of Professor Fuller, cited approvingly by the Supreme Court, "If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever." Accordingly, when addressing constitutional challenges to new rules of liability, the Supreme Court has regarded the Takings Clause as a first cousin of the doctrine of substantive due process and has given broad scope to legislative prerogatives to modify legal rules without having to compensate affected parties for the costs resulting from the changes.(320) V. WHETHER THE REGULATION IS DIRECTED AT LAND In Lucas, Justice Scalia's majority opinion stated that "perhaps.... a law that destroys the value of land without being aimed at land ... the generally applicable criminal prohibition on the manufacturing of alcoholic beverages challenged in the Mugler case comes to mind--cannot constitute a compensable taking."(321) Thus, for example, regardless of the alleged impact of the Endangered Species Act on the value of a particular parcel of land, courts may find no taking because the ESA is not directed at land. The generally applicable civil and criminal prohibitions of the ESA(322) are not "aimed at land," but apply instead to the killing of protected species and other activities that could occur in the air from planes, in the water from boats, and by trespassers regardless of any claimed property rights in land.(323) This is a clearer example than the statute in Mugler v. Kansas, which prohibited an activity--the manufacture of alcoholic beverages--that necessarily involves land.(324) VI. PERSONAL PROPERTY CLAIMS ARE UNDERMINED BY LUCAS In Andrus v. Allard,(325) the Supreme Court held that prohibitions on the sale of bird parts under the federal Eagle Protection Act(326) and Migratory Bird Protection Act(327) did not effect a taking.(328) Although the statutes foreclosed the most profitable use of the plaintiff's personal property--eagle feathers that were lawfully acquired before the statutes were enacted-they did not deprive the owner of all value.(329) This decision was cited with approval by three of the four opinions in Lucas.(330) In particular, Justice Scalia cited Andrus v. Allard in support of a fundamental distinction between land and personal property: [I]n the case of personal property, by reason of the State's traditionally high degree of control over commercial dealings, [the owner] ought to be aware of the possibility that new regulation might even render his property economically worthless (at least if the property's only economically productive use is sale or manufacture for sale). In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.(331) Other than the language quoted, Justice Scalia offered no explanation for this dichotomy. As Professor Bosselman (quoting Professor Michelman) has stated, "Such a `naked assertion' of a `free-floating sort of historical fact,' is hard to square with Justice Scalia's claim to be a conservative."(332) "To assign land a privileged status in relation to other categories of investment is particularly ironic at this point in history. In recent years, interests in land have become more like securities and often resemble other forms of investment capital."(333) As a practical matter, Justice Scalia's dichotomy was apparently necessitated by the desire to establish a rule for land that would be compatible with the innumerable instances where regulations destroy all value and use of personal property. Many of these instances involve legislatively created prohibitions on possession, manufacture, or sale of previously legal and valuable goods--actions that clearly go beyond "background principles" of property and nuisance law.(334) Justice Scalia repeatedly limited Lucas "per se" liability to cases involving land. His contrast between personal property and land did not specifically address the status of cases that involve buildings or other real property.(335) For example, the land may retain value in a case in which fire or construction code provisions preclude any economic value or use of older buildings. Lucas will continue to have a significant practical impact by undercutting regulatory takings claims involving personal property. For example, this greater scope of noncompensable government action regarding personal property has been applied to the species protection context. In denying an ESA takings claim involving prohibition on the sale of animal parts, a federal district court cited the Lucas land versus personal property distinction, although the court also found that there was not a denial of all economic value because other uses remained.(336) Another federal district court cited Lucas in rejecting a takings claim that challenged a state ban on the use of gill nets in the Indiana waters of Lake Michigan.(337) The court rejected the "investment-backed expectations" claims of gill net and fishing license purchasers: When an individual or corporate entity purchases personal property (as opposed to real property) to engage in a commercial venture the purchaser is taking a risk that government regulation will diminish the value of that property .... Indeed, where the item purchased could potentially invoke environmental concerns the purchaser must be especially wary in these days of growing environmental concern.(338) VII. CONCLUSION Statutes or regulations that track background principles of state and federal property law and nuisance law cannot be the subject of a taking. Nuisance and property law restrictions evolve over time to reflect new circumstances or new knowledge that may make what was previously permissible no longer so. Many federal and state courts have held that preexisting statutes and regulations are background principles, while others have ruled that such statutes and regulations defeat reasonable investment-backed expectations. In addition, Lucas severely undermines claims involving commercial dealings in personal property. Thus, as a practical matter, the Lucas categorical and other "exceptions" to Fifth Amendment liability are far more significant in limiting takings claims involving land and in severely undermining personal property claims than they are in controlling the very rare situations in which the Lucas "rule" will apply. Here the "exceptions" are the "rule." (1) U.S. CONST. amend. V. This provision, also known as the Just Compensation Clause, is applied to state and local governments through the Fourteenth Amendment. U.S. CONST. amend. XIV; Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 241 (1897); see also Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 481 n. 10 (1987). (2) 505 U.S. 1003 (1992). I represented the National Wildlife Federation as an amicus curiae on the side of the government in Lucas and in several other takings cases discussed below, including Dolan v. City of Tigard, 512 U.S. 374 (1994); Good v. United States, 189 F. 3d 1355 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881); National Mining Ass'n v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999); Florida Rock Industries, Inc. v. United States (Florida Rock), 18 F.3d 1560 (Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Florida Game & Fresh Water Fish Commission v. Flotilla, Inc., 636 So. 2d 761 (Fla. Dist. Ct. App. 1994); K & K Construction, Inc. v. Department of Natural Resources, 575 N.W.2d 531 (Mich.), cert. denied, 119 S. Ct. 60 (1998); McQueen v. South Carolina Coastal Council, 496 S.E.2d 643 (S.C. Ct. App. 1998), cert. granted, (Mar. 18, 1999); and Zealy v. City of Waukesha, 548 N.W.2d 528 (Wis. 1996). (3) See Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing, 12 VA. ENVTL. L.J. 439 (1993). My article was reproduced in the 1994 ZONING AND PLANNING LAW HANDBOOK (Kenneth Young ed., 1994) and excerpted in the casebook PROPERTY: KID OWNERSHIP AND USE (Curtis J. Berger & Joan C. Williams eds., 4th ed. 1997). In that article, I noted that [t]he extraordinary popular interest in Lucas was matched by a proliferation of amicus briefs. Sixteen amicus briefs were filed on behalf of petitioner David Lucas. The interests represented included, inter alia, various associations of land developers and builders, realtors, ranchers, mining and timber associations, and four United States Senators. Eleven amicus briefs were filed on behalf of respondent South Carolina Coastal Council by a variety of interests--scientists; environmental, conservation, and preservation groups; numerous cities, counties, states and United States territories; and several associations of municipal and governmental entities. Sugameli, supra, at 452-53 & nn.65-66. (4) Sugameli, supra note 3, at 441 & n.7. (5) Petitioner's Brief on the Merits at 11-33, Lucas (No. 91.453); Brief of Amici Curiae American Mining Congress, National Coal Association, National Forest Products Association, American Forest Council, and American Forest Resource Alliance in Support of Petitioner at 7-11, Lucas (No. 91-453); Brief Amici Curiae of American Farm Bureau Federation and South Carolina Farm Bureau Federation in Support of Petitioner at 16-21, Lucas (No. 91-453). (6) See Lucas, 505 U.S. at 1031. (7) Id. at 1005. (8) Id. at 1032 (Kennedy, J., concurring). (9) Id. at 1036 (Blackmun, J., dissenting). (10) Id. at 1061 (Stevens, J., dissenting). (11) Id. at 1076 (Souter, J., statement). (12) Lucas v. South Carolina Coastal Council, 404 S.E.2d 895 (S.C. 1991), rev'd, 505 U.S. 1003 (1992). (13) S.C. CODE ANN. [subsections] 48-39-10 to 48-39-360 (Law Coop. 1987 & Supp. 1991). (14) Lucas, 505 U.S. at 1031-32 (Scalia, J., writing for the majority). (15) Id. at 1008. (16) Id. at 1020 n.9. (17) Id. at 1029. (18) Id. Justice Scalia never answered the issue that he described in the first paragraph: "This case requires us to decide whether the Act's dramatic effect on the economic value of Lucas's lots accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of `just compensation.'" Id. at 1007 (emphasis added). Instead, the case was remanded to the South Carolina Supreme Court for the state to "identify background principles of nuisance and property law that prohibit the uses [Lucas] now intends in the circumstances in which the property is presently found." Id. at 1031. (19) Id. at 1029. (20) Id. at 1029 n. 16 (quoting Bowditch v. Boston, 101 U.S. 16, 18-19 (1880), and citing United States v. Pacific R.R. Co., 120 U.S. 227, 238-39 (1887)). (21) Id. at 1027 n. 14. (22) 438 U.S. 104 (1978). (23) Id. at 124. (24) Lucas, 505 U.S. at 1015 (emphasis added); see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). (25) See Dolan v. City of Tigard, 512 U.S. 374, 396 (1994) (holding that physical exactions and dedications that result in conveyance of part of property as a condition for a permit for use of remainder are subject to nexus and rough proportionality test, rather than Lucas rule); Yee v. City of Escondido, 503 U.S. 519, 531 (1992) (holding that property owners who "voluntarily open their property to occupation by others ... cannot assert a per se right to compensation based on their inability to exclude particular individuals"); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 1635 (1999) (refusing to "extend[ ] the rough-proportionality test of Dolan beyond the special context of exactions"). (26) Lucas, 505 U.S. at 1017. (27) Id. at 1015. In 1988 the Tenth Circuit essentially anticipated both the nuisance law and property law background principle exceptions in Lucas. See United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1507 (10th Cir. 1988). The Lawrence district court ordered removal of a 28-mile fence that was on private land, but that enclosed federal lands, after pronghorn collected against the fence and starved trying to reach public domain winter habitat. Id. at 1504. First, the district court's order did not take a servitude for pronghorn, but rather abated a nuisance that was proscribed by federal law. Id. at 1507 (citing the Unlawful Inclosures of Public Lands Act, 43 U.S.C. [subsections] 061-1066 (1988)). Second, no property interest was taken: "All that Lawrence has lost is the right to exclude others, including wildlife, from the public domain--a right he never had." Id. at 1508. (28) Sugameli, supra note 3, at 462. (29) Id. (30) Lucas, 505 U.S. at 1035 (Kennedy, J., concurring in the judgment). (31) Richard J. Lazarus, Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases, 38 WM. & MARY L. REV. 1099, 1104 (1997). (32) 524 U.S. 498 (1998). (33) Id. at 538-39; see John D. Echeverria, Revving the Engines in Neutral: City of Monterey v. Del Monte Dunes at Monterey, Ltd., [29 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,682, 10,686 n.48 (Nov. 1999) (stating that Eastern Enterprises "establishes an important new limit on regulatory takings doctrine"); Fred Bosselman, Dolan's Mysteries Explained?, 51 LAND USE L. & ZONING DIG. 3 (1999) (arguing that the decision supports the conclusion that monetary exactions are immune from Takings Clause challenges); see also Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1254 n.5 (D.C. Cir. 1998) (Silberman, J.) (stating that Eastern Enterprises may make "takings claims less attractive to litigants than they once were because of the possibility that the five dissenters on the takings issue could form a majority in a later case"). (34) Id. at 550-68 (Breyer, J., dissenting, joined by Stevens, J., Souter, J., and Ginsburg, J.). (35) Id. at 503-38 (O'Connor, J., joined by Rehnquist, C.J., Scalia, J., and Thomas, J.). (36) Id. at 539-50 (Kennedy, J., concurring in the judgment and dissenting in part). Justice Kennedy emphasized "the importance [to Takings Clause analysis] of identifying the property allegedly taken, lest all governmental action be subjected to examination under [the Takings Clause]." Id. at 543; see also id. at 550-68 (Breyer, J., dissenting) (agreeing that Takings Clause does not apply to a liability to pay money). (37) See Stern v. Halligan, 158 F.3d 729, 735 n.7 (3d Cir. 1998) (stating that denial of all economically viable use under Lucas required the "total destruction of value"); Texas Manufactured Hous. Ass'n v. Nederland, 101 F.3d 1095, 1105 (5th Cir. 1996) (finding no taking where there was no showing of deprivation of all beneficial use); Burnham v. Monroe County, 738 So.2d 471, 472 (Fla. Dist. Ct. App. 1999) ("To establish a taking by inverse condemnation, a plaintiff must show that the challenged regulation denies all economically beneficial or productive use of land.") (citing Lucas); Jacobi v. City of Miami Beach, 678 So. 2d 1365, 1366 (Fla. Dist. Ct. App. 1996) (finding no taking because "[d]uring the period in question, the owners made improvements to the property.... Thus, they were not denied substantially all use of the property."); Tampa-Hillsborough County v. A.G.W.S. Corp., 640 So. 2d 54, 58 (Fla. 1994) ("A taking occurs where regulation denies substantially all economically beneficial or productive use of land....); JWL Invs., Inc. v. Guilford County Bd. of Adjustment, 515 S.E.2d 715, 719 (N.C. Ct. App. 1999) (stating that "all economically beneficial or productive use" must be denied in order for there to be a taking); Shell Island Homeowners Ass'n v. Tomlinson, 517 S.E.2d 406, 414 (N.C. Ct. App. 1999) (citing JWL Investments, 515 S.E.2d 715); Mock v. Department of Envtl. Resources, 623 A.2d 940, 946 (Pa. Commw. Ct. 1993) (applying the absolute deprivation rule), aff'd, 667 A.2d 212 (Pa. 1995); Zealy v. City of Waukesha, 548 N.W.2d 528, 532 (Wis. 1996) (holding that no taking can occur absent denial of all or substantially all value). See also John D. Echeverria, Is Penn Central 3-Factor Test Ready for History's Dustbin? (unpublished paper presented at Georgetown University Law Center/Environmental Policy Project CLE Program on Litigating Regulatory Takings Claims, Oct. 28-29, 1999) (available at http://www.envpoly.org/papers/penn.htm). Other courts continue to assess less than total wipe-out takings claims under the three factors that the Supreme Court identified in Penn Central--I) the character of the governmental action, 2) the economic impact of the regulation, and 3) whether the regulation interfered with reasonable investment-backed expectations. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). See, e.g., Forest Properties, Inc. v. United States, 39 Fed. Cl. 56, 67 (1997), aff'd, 177 F.3d 1360 (Fed. Cir.), cert. denied, 120 S. Ct. 373 (1999). (38) Lucas, 505 U.S. at 1028 n.15. (39) Id. at 1014 (alterations in original) (citations omitted) (quoting Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879)). This conclusion is supported by extensive research into Colonial-era law. See FRED BOSSELMAN ET AL., COUNCIL ON ENVTL. QUALITY, THE TAKINGS ISSUE: A STUDY OF THE CONSTITUTIONAL LIMITS OF GOVERNMENTAL AUTHORITY TO REGULATE THE USE OF PRIVATELY-OWNED LAND WITHOUT PAYING COMPENSATION TO THE OWNERS 82--104 (1973); John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1258 (1996); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 783 (1995); see also ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 230 ("My difficulty is not that [Richard] Epstein's Constitution would repeal much of the New Deal and modern regulatory-welfare state but rather that these conclusions are not plausibly related to the original understanding of the takings clause."). Compare RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 26--29 (1985). (40) United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985). (41) See Lucas, 505 U.S. at 1027-29. (42) Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998). (43) See, e.g., Christy v. Hodel, 857 F.2d 1324, 1334-35 (9th Cir. 1988) (rejecting a takings claim by a rancher who was fined under the ESA for killing a grizzly bear); Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1429-31 (10th Cir. 1986) (en banc) (finding that damage to grazing land caused by protected wild homes did not constitute a taking). (44) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1020 n.9 (1992). (45) Id. at 1031-32. (46) Id. at 1034 (Kennedy, J., concurring) ("I share the reservations of some of my colleagues about a finding that a beachfront lot loses all value because of a development restriction.'); id. at 1043-44 (Blackmun, J., dissenting) ("[T]he Court creates its new takings jurisprudence based on the trial court's finding that the property had lost all economic value. This finding is almost certainly erroneous.") (footnotes omitted); id. at 1065 n.3 (Stevens, J., dissenting) (suggesting the "land is far from `valueless"); id. at 1076 (Souter, J., statement) (stating that the trial court's finding that the development ban rendered the land valueless is "highly questionable"). (47) See, e.g., Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1577 (10th Cir. 1995) (holding that even assuming a right to hunt, Wyoming's hunting limitations on the plaintiff's land did not take property because it could still be used for ranching and farming). (48) Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 137 (1978). (49) Lucas, 505 U.S. at 1009 (describing the situation as a "complete extinguishment of [Lucas's] property's value"); id. at 1026 (distinguishing previous Supreme Court cases because "[n]one of them ... involved an allegation that the regulation wholly eliminated the value of the claimant's land"). (50) Id. at 1030. (51) 520 U.S. 725 (1997). (52) See Good v. United States, 39 Fed. Cl. 81, 108 (1997), aff'd, 189 F.3d 1355 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881). (53) Suitum, 520 U.S. at 728. (54) See id. at 740-42. (55) Id. at 741. (56) Good, 39 Fed. Cl. at 108; see 520 U.S. at 745-50 (Scalia, J., concurring in part, joined by O'Connor, J., and Thomas, J.). (57) In rejecting a takings challenge to the denial of a federal wetlands permit, the appellate Court of Claims (now the Federal Circuit) has relied upon the claimant's possession of TDRs: "[TDRs] granted by the county ... `mitigate whatever financial burdens the law ... impose[s] ... and, for that reason are to be taken into account in considering the impact of the regulation.'" Deltona Corp. v. United States, 657 F.2d 1184, 1192 n. 14 (Ct. Cl. 1981) (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 137 (1978)); see also Good, 39 Fed. Cl. at 113; Glisson v. Alachua County, 558 So. 2d 1030 (Fla. Dist. Ct. App. 1990); Gardner v. New Jersey Pinelands Comm'n, 593 A.2d 251, 261 (N.J. 1991). But see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 34 F. Supp. 2d 1226, 1242-48 (D. Nev. 1999) (finding a taking despite finding that the land retained value from TDRs) (appeal pending). (58) 482 U.S. 304 (1987). (59) Id. at 330. (60) See Keystone Bituminous Coal Ass'n v. DeBenedictis (Keystone), 480 U.S. 470, 501 (1987) (surface support rights); Penn Central, 438 U.S. at 130 (air rights); Florida Game & Fresh Water Fish Comm'n v. Flotilla, Inc., 636 So. 2d. 761, 765 (Fla. Dist. Ct. App. 1994) (acreage); K & K Constr. v. Department of Natural Resources, 575 N.W.2d 531 (Mich.) (acreage), cert. denied, 119 S. Ct. 60 (1998); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258, 262 (Minn. Ct. App. 1992) (temporary moratorium). (61) See Gorieb v. Fox, 274 U.S. 603, 610 (1927). (62) Id. at 606; see also Keystone, 480 U.S. at 488 (finding no taking where statute eliminated separate support estate that was recognized by state law). (63) See Keystone, 480 U.S. at 497 (citing Penn Central, 438 U.S. at 130-31). (64) Keystone, 480 U.S. at 497. (65) See Lucas v. South Carolina Council, 505 U.S. 1003, 1016 n.7 (1992). (66) 508 U.S. 602 (1993). (67) Id. at 644; see Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 749 (1997) (Scalia, J., concurring in part) ("The relevant land [in Penn Central] ... was the aggregation of the owners' parcels subject to the regulation (or at least the contiguous parcels.")). (68) See, e.g., Keystone, 480 U.S. at 488 (finding no taking where state law recognized separate support estate was eliminated); Penn Central, 438 U.S. at 104 (finding no taking of air rights when considered as part of parcel as a whole, including transferable development rights). (69) See, e.g., Estate of McLaughlin v. Town of Front Royal, 996 F. Supp. 565 (W.D. Va. 1998) (considering the diminution in value of the entire tract of land in dismissing takings case against town); Florida Game & Fresh Water Fish Comm'n v. Flotilla, Inc., 636 So. 2d 761, 765 (Fla. Dist. Ct. App. 1994) (finding that the "property as a whole retained economic life"); FIC Homes of Blackstone, Inc. v. Conservation Corem'n, 673 N.E.2d 61 (Mass. App. Ct. 1996) (holding that when individual lots are purchased together they are considered one parcel for takings purposes), rev. denied, 676 N.E.2d 55 (Mass. 1997); K & K Constr. v. Department of Natural Resources, 575 N.W.2d 531 (Mich.) (holding that property purchased as a single unit constituted the relevant parcel for takings analysis), cert. denied, 119 S. Ct. 60 (1998). (70) 10 F.3d 796 (Fed. Cir. 1993). (71) Id. at 802. (72) Fallini v. United States, 31 Fed. Cl. 53, 59 (1994), vacated on other grounds, 56 F.3d 1378 (Fed. Cir. 1995) (but affirming rejection of takings claim). (73) 177 F. 3d 1360 (Fed. Cir.), cert. denied, 120 S. Ct. 373 (1999). (74) Id. at 1366. (75) Id. at 1365. (76) See, e.g., K & K Constr. v. Department of Natural Resources, 575 N.W.2d 531 (Mich.) (holding that when property was purchased as a single unit and permit application contemplated a single comprehensive development on three of four contiguous tracts, the relevant parcel was "at least" those three tracts, despite differences in zoning), cert. denied, 119 S. Ct. 60 (1998); Zealy v. City of Waukesha, 548 N.W.2d 528 (Wis. 1996) (rejecting view that landowner's anticipated use determined the relevant parcel, reversing decision by court of appeals that looked only at 8.2 acres zoned as wetlands conservancy, and finding no taking by defining property to include 2.1 contiguous acres of property zoned residential and commercial). (77) See, e.g., Naegele Outdoor Adver. v. City of Durham, 803 F. Supp. 1068 (M.D.N.C. 1992) (finding that geographically dispersed commercial billboards were a single parcel), aff'd, 19 F.3d 11 (4th Cir. 1994); Ciampitti v. United States, 22 Cl. Ct. 310, 321-22 (1991) (finding no taking of parcel that, based on various facts, was held to include noncontiguous acreage); Town of Jupiter v. Alexander, No. 96-1693, 1998 WL 634705 (Fla. Dist. Ct. App. Sept. 16, 1998) (rejecting a temporary takings challenge to restrictions on developing private island because the relevant parcel for takings analysis included the owner's nearby mainland property that the owner remained free to develop), amended, 1998 WL813415 (Fla. Dist. Ct. App. Nov. 12, 1998), review denied, 729 So. 2d 389 (1999). (78) See, e.g., State Dep't of Envtl. Regulation v. Schindler, 604 So. 2d 565, 567-68 (Fla. Dist. Ct. App. 1992) (finding no taking after considering not only uplands, but also 1.85 acres of wetlands that had previously revested in the State, which had then separately resold them); Fox v. Treasure Coast Reg'l Planning Council, 442 So. 2d 221,225 (Fla. Dist. Ct. App. 1983) (holding that it is not a taking to prohibit "development on certain portions of [a] tract" of 1705 acres of wetlands); American Dredging Co. v. State Dep't of Envtl. Protection, 391 A.2d 1265, 1270 (N.J. Super. Ct. Ch. Div. 1978) (considering plaintiffs entire 2500 acres of land and finding that prohibition on deposition of dredge spoils on 80 acres of wetlands was not a taking), aff'd, 404 A. 2d 42 (N.J. Super. Ct. App. Div. 1979); Smith v. Williams, 560 N.Y.S.2d 816, 817 (N.Y. App. Div. 1990) (finding that a denial of wetland permits to build on "three parcels" was not a taking where economic value remained in "the property as a whole, including the unrestricted lots"). (79) See Deltona Corp. v. United States, 657 F.2d 1184, 1192 (Ct. Cl. 1981); Jentgen v. United States, 657 F.2d 1210, 1213 (Ct. Cl. 1981). (80) See South Corp. v. United States, 690 F.2d 1368, 1370 (Fed. Cir. 1982); United States Claims Court General Order No. 1, 1 Cl. Ct. xxi (1982). (81) 657 F.2d at 1213. (82) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997). (83) Id. [sections] 1344 (1994). (84) 657 F.2d at 1188-89. (85) Id. at 1192. (86) See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 496-97 (1987); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130 (1978). (87) See Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993). (88) See Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994). (89) 18 F.3d at 1573. (90) Id. at 1569-72; see Jay Plager, Takings Law and Appellate Decision Making, 25 ENVTL L. 161, 162 (1995) (stating that the partial takings issue in Florida Rock was not fully briefed and argued); Glenn P. Sugameli, Takings Bills Threaten Private Property, People, and the Environment, 8 FORDHAM ENVTL. L.J. 521, 553-56, 561-86, (1997) (arguing that there are fatal flaws in takings bills that would require payments based on a specific diminution in value of any affected portion of property). (91) 70 F.3d 1566 (10th Cir. 1995). (92) Id. at 1577. (93) 512 U.S. 374 (1994). (94) Clajon, 70 F.3d at 1577 n. 18 (quoting Dolan, 512 U.S. at 400). (95) Id. On remand in Florida Rock, Chief Judge Smith attempted to distinguish Clajon in finding a taking. Florida Rock Indus, Inc. v. United States, 45 Fed. Cl. 21, 32 n.9 (1999). (96) Clajon, 70 F.3d at 1569. (97) Id. at 1577 (quoting Clajon Prod. Corp. v. Petera, 854 F. Supp. 843, 851 n. 14 (D. Wyo. 1994), aff'd, 70 F.3d 1566 (10th Cir. 1995)). (98) 28 F.3d 1171 (Fed. Cir. 1994). (99) Id. at 1181. (100) Quirk v. Town of New Boston, 663 A.2d 1328, 1442 (N.H. 1995) (citations omitted) (quoting Loveladies Harbor, 28 F.3d at 1181); see also Forest Properties, Inc. v. United States, 177 F.3d 1360, 1365 (Fed. Cir.) (noting that the relevant parcel analysis utilizes a flexible approach), cert. denied, 120 S. Ct. 373 (1999). (101) 28 F.3d at 1174. (102) Id. at 1181. (103) Id. (104) Robert H. Freilich et al., Regulatory Takings: Factoring Partial Deprivations into the Taking Equation, in TAKINGS: LAND-DEVELOPMENT CONDITIONS AND REGULATORY TAKINGS AFTER DOLAN AND LUCAS 165, 177 (American Bar Association 1996). (105) Id. (106) Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 ENVTL. L. 171, 189 (1995); see also Gerald Torres, Taking and Giving: Police Power, Public Value, and Private Right, 26 ENVTL. L. 1, 17-21 (1996) (criticizing "partial takings" analysis in Florida Rock and Loveladies Harbor). (107) Zealy v. City of Waukesha, 548 N.W.2d 528, 533 (Wis. 1996); see also Quirk v. Town of New Boston, 663 A.2d 1328, 1332 (N.H. 1995) (emphasizing that Loveladies Harbor embraces a flexible test). (108) 447 U.S. 255 (1980). (109) Id. at 263 n.9 (citations omitted) (quoting Danforth v. United States, 308 U.S. 271, 285 (1939)). (110) See, e.g., Williams v. City of Central, 907 P.2d 701, 704 (Colo. Ct. App. 1995) (stating that "fluctuations in value that occur during a temporary moratorium ... are, simply, incidents of ownership"); City of Minneapolis v. Fisher, 504 N.W.2d 520, 526 (Minn. Ct. App. 1993) ("[B]ecause of the temporary nacre of the alleged taking, we will conclude appellants cannot avail themselves of the Lucas rule."); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. Ct. App. 1992) (holding that a two-year moratorium did not constitute a taking). (111) 492 N.W.2d at 260-61. (112) Id. at 261 (quoting Lucas, 505 U.S. at 1004). (113) 482 U.S. 304 (1987). (114) Id. at 322 (holding that "the invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy"). (115) Woodbury, 492 N.W. 2d at 260-61 (citing First English Evangelical Lutheran Church v. County of Los Angeles, 210 Cal. App. 3d 1353, 1372-73 (Cal. Ct. App. 1989), cert. denied, 493 U.S. 1056 (1990)). (116) See 482 U.S. at 321. (117) Woodbury, 492 N.W.2d at 262 (quoting First English, 482 U.S. at 310). (118) Id. Compare Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed. Cir. 1998) (stating in dicta that it is the nature of the intrusion and not the temporal duration that determines if it is a temporary or permanent regulatory taking), with Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1582 (Fed. Cir. 1993) (indicating that the cessation of the regulation was necessary to find a temporary taking). (119) Woodbury, 492 N.W.2d at 262. (120) Id. at 262 n.3 (quoting Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1621 (1988)); see also First English, 482 U.S. at 304 ("We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective."). (121) 791 F. 2d 893 (Fed. Cir. 1986). (122) Id. at 902-03. (123) Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1566 (Fed. Cir. 1994). (124) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 34 F. Supp. 2d 1226 (D. Nev. 1999) (appeal filed). (125) See, e.g., Williams v. City of Central, 907 P.2d 701, 704, 706 (Colo. Ct. App. 1995) (citing Agins v. City of Tiburon, 447 U.S. 255 (1980)) (holding that a moratorium on new development in a gambling district did not effect a taking under Lucas: "[E]ven if the ability to sell or develop ... property is restricted during [a] moratorium, the landowner is free to continue with sale or development once the regulation is lifted."); Woodbury, 492 N.W.2d at 261 (holding that a moratorium prohibiting all "economically viable use" of property during two-year period did not result in a taking under Lucas); Kelly v. Tahoe Reg'l Planning Agency, 855 P.2d 1027, 1033-34 (Nev. 1993) (rejecting takings challenge to temporary building moratoria that, unlike the restrictions in Lucas, "temporarily limit, rather than forever preclude, development in environmentally sensitive areas"); Santa Fe Village Venture v. City of Albuquerque, 914 F. Supp. 478, 483 (D.N.M. 1995) (citing Lucas and rejecting claim that 30-month moratorium resulted in taking); but see Bass Enters. Prod. Co. v. United States, 45 Fed. Cl. 120 (1999) (finding a temporary taking from rejection of oil and gas drilling pending an EPA recommendation). (126) See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987) (distinguishing temporary takings from "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like"). Such noncompensable delays are considered part of the ordinary burden of living in a regulated society. See Guinnane v. City & County of San Francisco, 197 Cal. App. 3d 862, 868-70 (Cal. Ct. App. 1988). (127) See Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802-03 (Fed. Cir. 1993) (holding that any mistakes or delay by the Corps of Engineers did not give rise to a takings claim); Landgate, Inc. v. California Coastal Comm'n, 953 P.2d 1188, 1204 (Cal.) (holding that a two-year delay resulting from an error by the Commission was not a compensable taking), cert. denied, 119 S. Ct. 179 (1998); Buckley v. California Coastal Corem'n, 68 Cal. App. 4th 178, 195 (Cal. Ct. App. 1998) (finding that mistaken assertion of jurisdiction by the Commission did not create a compensable taking), cert. denied, 120 S. Ct. 54 (1999); Littoral Dev. v. San Francisco Bay Conservation & Dev. Comm'n, 33 Cal. App. 4th 211, 221-22 (Cal. Ct. App. 1995) (holding that the action of the Commission in unsuccessfully attempting to assert jurisdiction over the upland portion of a landowner's property, in addition to that portion of the property constituting marshland, did not result in a taking). But see Eberle v. Dane County Bd. of Adjustment, 595 N.W.2d 730, 737-43 (Wis. 1999) (rejecting Landgate and holding that erroneous denial of land use permit supports temporary takings claim). (128) Cannone v. Noey, 867 P.2d 797 (Alaska 1994). (129) Bennis v. Michigan, 516 U.S. 442 (1996). (130) Michigan v. Bennis, 527 N.W.2d 483, 492-95 (Mich. 1994), aff'd, 516 U.S. 442 (1996). (131) Bennis, 516 U.S. at 452-53. (132) 505 U.S. at 1027-29. (133) Id. at 1029; see also James M. McElfish, Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, [24 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,231, 10,247-48 (May 1994); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1, 7 (1993). (134) 505 U.S. at 1029 n. 16 (quoting Bowditch v. Boston, 101 U.S. 16, 18-19 (1879)); see also Miller v. Schoene, 276 U.S. 272 (1928) (finding that a State of Virginia order to destroy cedar trees to prevent spread of disease to nearby apple orchards was not a taking). (135) Customer Co. v. City of Sacramento, 10 Cal. 4th 368 (Cal. 1995). (136) See Lucas, 505 U.S. at 1026-27; David Coursen, Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law, [22 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,778, 10,784 (Dec. 1992) ("In the guise of articulating one categorical rule--a denial of all use works a taking--the Court has implicitly established another principle that state-imposed [background] limitations on property use always defeat a taking claim."). (137) See Lucas, 505 U.S. at 1027-28. (138) Id. at 1028-29 (citing Scranton v. Wheeler, 179 U.S. 141, 163 (1900)). (139) American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (holding that under a state statute, employees do not have a property interest in payment for medical treatment that has yet to be found reasonable and necessary); see U.S. CONST. amend. XIV, [sections] i ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). (140) Abrahim-Youri v. United States, 139 F.3d 1462, 1468 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2366 (1998). (141) Rith Energy, Inc. v. United States, 44 Fed. Cl. 366, 366-67 (1999) (citation omitted) (quoting Lucas, 505 U.S. at 1029) (denying a motion for rehearing) (appeal pending). (142) See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 483 (1987); Meriden Trust & Safe Deposit Co. v. Fed. Deposit Ins. Corp., 62 F.3d 449, 455 (2d Cir. 1995). (143) See, e.g., Avenal v. United States, 100 F.3d 933 (Fed. Cir. 1996) (reversing finding that plaintiff never acquired a constitutionally protectable property interest, but affirming holding of no taking because of lack of reasonable investment-backed expectations). (144) 524 U.S. 156 (1998). (145) Id. at 172. (146) For example, in National Mining Association v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999), Judge Silberman quoted the plurality opinion in Eastern Enterprises: "`Congress has considerable leeway to fashion economic legislation, including the power to affect contractual commitments between private parties.'" Id. at 917 (quoting Eastern Enters. v. Apfel, 524 U.S. 498, 528 (1998)). Judge Silberman indicated that the requirement that coal companies compensate homeowners for damage caused by subsidence from underground mining-- thus overriding private agreements--presented a "rather implausible" basis for a takings claim. Id. (147) 175 F.3d 1374 (Fed. Cir. 1999). (148) Id. at 1379. (149) Lucas, 505 U.S. at 1030 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). (150) Id. at 1031; see Chevy Chase Land Co. v. United States, 733 A.2d 1055 (Md. Ct. App. 1999) (ruling on certification from the Federal Circuit that a 1911 deed granting an easement for the construction of a branch railway was sufficiently broad to encompass recreational use after railroad operations ceased). (151) 854 P.2d 449 (Or. 1993), cert. denied, 510 U.S. 1207 (1994). (152) See Stevens v. City of Cannon Beach, 510 U.S. 1207, 1209 (1994) (Scalia, J., with O'Connor, J., dissenting from denial of certiorari). (153) Public Access Shoreline Hawaii v. Hawai'i County Planning Comm'n, 903 P.2d 1246, 1268 (Haw.), cert. denied, 517 U.S. 1163 (1995). (154) Hunziker v. State, 519 N.W.2d 367, 370-71 (Iowa 1994), cert. denied, 514 U.S. 1003 (1995). (155) Kim v. City of New York, 681 N.E.2d 312, 315-16 (N.Y.) (concerning a city charter requirement to maintain lateral support for roadway), cert. denied, 522 U.S. 809 (1997); Gazza v. New York State Dep't of Envtl. Conservation, 679 N.E.2d 1035, 1039 (N.Y.) (concerning a statutory wetlands restriction), cert. denied, 522 U.S. 813 (1997); Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870, 872 (N.Y.) (concerning a steep slope ordinance), cert. denied, 521 U.S. 1132 (1997); Basile v. Town of Southampton, 678 N.E.2d 489, 491 (N.Y.) (concerning the state Tidal Wetlands Act), cert. denied, 522 U.S. 907 (1997). (156) 498 S.E. 2d 414 (Va.), cert. denied, 119 S. Ct. 73 (1998). (157) Id. at 415. (158) See Hoeck v. Portland, 57 F.3d 781, 789 (9th Cir. 1995) (concerning a municipal ordinance), cert. denied, 516 U.S. 1112 (1996); M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed. Cir. 1994) (concerning the Surface Mining Control and Reclamation Act), cert. denied, 516 U.S. 808 (1995); Marks v. United States, 34 Fed. Cl. 387, 411 (1995) (rejecting on background principle grounds the takings claim for the portion of the property below the high water mark), aff'd without opinion, 116 F.3d 1496 (Fed. Cir. 1997), cert. denied, 522 U.S. 1075 (1998). (159) See Part III. I., infra. The Court also rejected a petition for certiorari from a state Supreme Court decision that reversed on other grounds an intermediate court ruling that had held that preexisting statutes are not background principles. K & K Constr., Inc. v. Michigan Dep't of Natural Resources, 551 N.W.2d 413, 417 (Mich. Ct. App. 1996), rev'd on other grounds, 575 N.W.2d 531 (Mich.), cert. denied, 119 S. Ct. 60 (1998). (160) 505 U.S. at 1035 (Kennedy, J., concurring in the judgment). (161) Id. (162) Phillips v. Washington Legal Found., 524 U.S. 156, 164 (1998) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). (163) Id. at 167; see also Lucas, 505 U.S. at 1029. (164) 179 U.S. 141 (1900). (165) Lucas, 505 U.S. at 1028 (citing Scranton v. Wheeler, 179 U.S. at 163). (166) Scranton, 179 U.S. at 163. (167) Lucas, 505 U.S. at 1028-29 (some citations omitted); see also United States v. Winstar Corp., 518 U.S. 839, 878 n.23 (1996) (Souter, J., with three Justices concurring and three Justices concurring in the judgment) (stating, in dicta, that the navigational servitude generally relieves the government from paying any compensation at all); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808 (1950) ("When the Government exercises this servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone.") In United States v. Cherokee Nation, 480 U.S. 700 (1987), the Court stated: The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. Id. at 704 (citation omitted). (168) Florida Rock Indus., Inc. v. United States, 45 Fed. Cl. 21, 28 (1999). (169) Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 900 (Fed. Cir. 1986) (citation omitted). (170) United States v. 30.54 Acres of Land, 90 F.3d 790, 795 (3d Cir. 1996) (citing Lucas, 505 U.S. 1003, in which the "Supreme Court explicitly recognized the navigational servitude as a pre-existing limitation on riparian landowners' estates"); see also Good v. United States, 39 Fed. Cl. 81, 96-97 (1997) (citing Marks v. United States, 34 Fed. Cl. 387 (1995), aff'd, 116 F.3d 1496 (Fed. Cir. 1997), cert. denied, 522 U.S. 1075 (1998)) (finding that the government failed to show that the regulatory limitations on plaintiff's property overlapped with the servitude), aff'd on other grounds, 189 F.3d 1355 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881); Marks, 34 Fed. Cl. 387 (rejecting on background principle grounds a takings claim for the portion of a property below the high water mark); Applegate v. United States, 35 Fed. Cl. 406, 414-15 (1996) ("The holdings of the Supreme Court and the Federal Circuit establish that the Government owes no compensation for injury or destruction of a claimant's rights when they lie within the scope of the navigational servitude.") (citing United States v. Chicago, Milwaukee, St. Paul & Pac. R.R., 312 U.S. 592, 596-97 (1941)). (171) See M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed. Cir. 1995) (concerning the federal Surface Mining Control and Reclamation Act); United States v. Hill, 896 F. Supp. 1057, 1063 (D. Colo. 1995) (holding there was no taking because animal parts were inherited after they were already subject to the proscribed conduct under the ESA and other federal wildlife statutes). (172) Donnell v. United States, 834 F. Supp. 19, 26 (D. Me. 1993); see also Murphy v. Department of Natural Resources, 837 F. Supp. 1217, 1221 (S.D. Fla. 1993) (recognizing constitutional Commerce Clause-based navigational servitudes that enable the federal government to modify navigable waters without incurring obligation associated with similar activities on land to compensate owners of submerged lands), aff'd, 56 F.3d 1389 (11th Cir. 1995). (173) Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 488 (1987). (174) Rith Energy, Inc. v. United States, 44 Fed. Cl. 108, 114 (1999) (citing Tennessee's Water Quality Control Act of 1977, TENN. CODE ANN. [subsections] 69-3-102 to 69-3-131 (1995 & Supp. 1998)). (175) Rith Energy, Inc. v. United States, 44 Fed. Cl. 366, 367 (1999) (denying a motion for rehearing) (appeal pending). The court stated that [t]he restrictions imposed by Tennessee's Water Quality Control Act ... do not represent a set of newly-proclaimed tenets of public nuisance law. To the contrary, activities that cause the pollution of domestic waters have long been recognized by the courts of Tennessee to be contrary to the public's health and safety and therefore enjoinable as a nuisance. Id. at 366 (citations omitted). (176) See, e.g., Hendler v. United States, 36 Fed. Cl. 574, 585-86 (1996) (suggesting an alternative holding based on Lucas's nuisance exception, rejecting regulatory takings claim involving governmental access to property near Superfund site), aff'd on other grounds, 175 F.3d 1374 (Fed. Cir. 1999); B & F Trawlers, Inc. v. United States, 27 Fed. Cl. 299, 305-06 (1992) (relying in part on the Lucas Court's nuisance discussion to dismiss a takings claim that was based upon the Coast Guard's sinking of the Star Trek, a vessel that represented a danger to navigation); Aztec Minerals Corp. v. Romer, 940 P.2d 1025, 1032 (Colo. Ct. App. 1996) (holding that a state-mandated Superfund clean up was not a taking because the site was a nuisance); Brown v. Thompson, 979 P.2d 586, 595, 598 (Haw. 1999) (finding that state impoundment of a sinking vessel effected a due process violation, but did not result in a taking because the vessel represented a nuisance); Kinross Copper Corp. v. Oregon, 981 P. 2d 833, 840 (Or. Ct. App.) ("[P]laintiff's takings claim is predicated on the loss of a right that it never possessed, namely, the right to discharge mining wastes into the waters of the state."), opinion adhered to on reconsideration, 988 P.2d 400 (Or. Ct. App. 1999); see also Department of Health v. The Mill, 887 P.2d 993 (Colo. 1995) (holding that use restrictions on a uranium tailings disposal site did not constitute a taking). (177) Palazzolo v. Coastal Resources Management Council, No. C.A. No. 86-1496, 1995 WL 941370, at *5 (R.I. Superior Ct. Jan. 5, 1995) (appeal pending); see also Gillen v. City of Neenah, 580 N.W.2d 628 (Wis. 1998) (holding that a violation of state public trust doctrine protecting navigable waters is a public nuisance that may be challenged by any person). (178) City of Miami v. Keshbro, Inc., 717 So. 2d 601, 605 (Fla. Dist. Ct. App. 1998), rev. granted, 729 So. 2d 392 (Fla. 1999). (179) Id. at 604 (distinguishing City of St. Petersburg v. Bowen, 675 So. 2d 626, 632 (Fla. Dist. Ct. App.) (finding that one-year closure of apartment complex to curtail tenant drug use was a temporary taking), rev. denied, 680 So. 2d 421 (Fla. 1996), cert. denied, 520 U.S. 1110 (1997)). The Keshbro and Bowen courts both failed to discuss or apply cases discussed above holding that Lucas is inapplicable to regulations that are limited in a temporal sense. Review of Keshbro has been consolidated with review of City of St. Petersburg v. Kablinger, 730 So. 2d 409 (Fla. Dist. Ct. App. 1999). The temporal limitation on takings claims was raised in front of the Florida Supreme Court on this consolidated appeal. (180) See, e.g., Federal Lands Legal Consortium v. United States, 195 F.3d 1190 (10th Cir. 1999) (holding that grazing permits are not property for purposes of either the Takings Clause or the Due Process Clause); Diamond Bar Cattle Co. v. United States, 168 F.3d 1209 (10th Cir. 1999) (holding that state law did not grant property right in federal land); Alves v. United States, 133 F.3d 1454, 1457-58 (Fed. Cir. 1998) (holding that grazing allotments are not a compensable property right under the Fifth Amendment); Kunkes v. United States, 78 F.3d 1549, 1550 (Fed. Cir. 1996) (holding that plaintiffs did not have a valid takings claim because they did not follow the statutory requirements to maintain their mining claim; it was their inaction that caused the forfeiture of the unpatented mining claim); Hage v. United States, 35 Fed. Cl. 147, 171 (1996) (holding that a government grazing permit does not create a property right such that the holder of the permit may sue for a taking of the property). (181) See, e.g., Parella v. Retirement Bd. of the R. I. Employees' Retirement Sys., 173 F.3d 46, 62 (1st Cir. 1999) (finding that the retroactive modification of a law governing state legislators' pension rights did not effect a taking because the plaintiffs had no clear contractual right to any particular level of pension benefits and therefore could not point to any property right to support the takings claim); Sebastain v. United States, 185 F.3d 1368 (Fed. Cir. 1999). The Sebastain court stated that [i]n the absence of any statutory or regulatory entitlement upon which to base their alleged property interest, plaintiffs' claim is founded only on promises that were made to retired service members at the time they enlisted, or agreed to continue their military careers.... [P]laintiffs have failed to show a property interest in health care benefits, and their claim for damages resulting from an alleged taking must be dismissed .... Id. at 1370. (182) Fallini v. United States, 31 Fed. Cl. 53, 59 (1994), vacated on other grounds, 56 F.3d 1378 (Fed. Cir. 1995) (but affirming rejection of takings claim). (183) 854 P.2d 449 (Or. 1993). (184) Id. at 456 (quoting State ex rel. Thornton v. Hay, 462 P.2d 671,678 (Or. 1969)). In 1973 The Takings Issue cited Thornton as an example of a case in which "governmental agencies can avoid the takings issue ... by reestablishing a pre-existing state interest in the land.... [C]laims of preexisting title have been most prevalent along the ocean shores, both for sandy beaches and tidal lands." FRED BOSSELMAN ST AL., supra note 39, at 309-10. (185) Stevens, 854 P.2d at 456-67. (186) Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, 903 P.2d 1246, 1268 (Haw.), cert. denied, 517 U.S. 1163 (1995). (187) Id.; see also Samuel J. Panarella, Not in My Backyard PASH v. HPC: The Clash Between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii, 28 ENVTL. L. 467, 483-85 (1998). (188) See Confederated Salish & Kootenai Tribes v. Namen, 665 F. 2d 951, 962 (9th Cir. 1982) (holding that under the Hell Gate Treaty, the bed of the south half of Flathead Lake is owned by the United States in trust for the Tribes). I represented the Tribes in this case. 189 See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). (190) See id. (191) Id. (rejecting equal footing doctrine and other claims raised by Minnesota and private landowners and holding that Chippewa Indian 1837 treaty fights to hunt, fish, and gather on land that they sold in the treaty were not extinguished by an 1850 Executive Order, an 1855 treaty, or Minnesota's entry into the Union on "equal footing" with other states); see also United States v. Washington, 157 F.3d 630, 647 (9th Cir. 1998) (affirming the treaty right of Washington State Indian tribes to gather shellfish from privately owned beaches), cert. denied, 119 S. Ct. 1376 (1999); Indian Shellfish Rights Upheld, THE WASHINGTON POST, Apr. 6, 1999, at A14. Pacific Legal Foundation's web site states that in both cases, it argued in amicus curiae briefs that the appropriate remedy was to monetarily compensate the tribe. Pacific Legal Foundation, Shellfish Dispute with Puget Sound Indians Continues (visited Aug. 25, 1999) <http://www.pacificlegal.org/lw-apr.htm#shellfish>; see also 1999 WL 457678 (Mille Lacs Band of Chippewa Indians amicus briefs). (192) Horny County v. Tilghman, 322 S.E.2d 831,833 (S.C. Ct. App. 1984); see also Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. Ct. App. 1989) (finding no taking because public's easement, acquired by custom, across landowner's property to access beach had moved land-ward with natural movements of vegetation line and line of mean low tide). (193) State of Texas v. Bartee, 894 S.W.2d 34, 41 (Tex. 1994). (194) See, e.g., Fares v. Arkansas State Game & Fish Comm'n, 310 S.W.2d 231, 237 (Ark. 1958) (finding no taking from ban on private landowner's sale of game fish raised entirely on private waters on his land; fish farmers had "only a qualified ownership"). The Environmental Policy Project has repeatedly argued that background principles of state ownership of wildlife preclude a finding of a taking. See http://www.envpoly.org/takings/courts/briefs.htm (visited Dec. 9, 1999) (Brief Amici Curiae for the Audubon Society of Portland and Oregon Trout, Inc., Coast Range Conifers v. State of Oregon, No. 99058 (Or. Circuit Court for Lincoln County) (filed Aug. 16, 1999); Brief Amicus Curiae for the Putnam Highlands Audubon Society, State of New York v. Sour Mountain Realty, No. 99-03232 (N.Y. App. Div.) (filed July 27, 1999)). (195) See Platt v. Philbrick, 47 P.2d 302, 304 (Cal. Ct. App. 1935); see also Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 308-31 (1995) (discussing wildlife preservation as a background principle of law). (196) 33 U.S.C. [sections] 1344 (1994 & Supp. III 1997). (197) Lucas, 505 U.S. at 1029-30. (198) Id. at 1030-31 (citing RESTATEMENT (SECOND) OF TORTS 826, 827 (1979)). (199) See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134-35 (1985) (unanimously endorsing findings on the importance of wetlands to aquatic ecosystems in upholding Army Corps of Engineers' jurisdiction over wetlands not flooded by adjacent waters); Sabine River Auth. v. United States Dep't of [the] Interior, 951 F.2d 669, 672 (5th Cir. 1992) ("Because wetlands are critical to flood control, water supply, water quality, and, of course, wildlife, their rapid disappearance is setting the stage for what may eventually become a significant environmental catastrophe."); see also Blue Water Isles Co. v. Department of Natural Resources, 431 N.W.2d 53, 58 (Mich. Ct. App. 1988) (denying a takings claim, recognizing that "both the statutes under which the DNR reviewed plaintiff's application and the DNR's denial of plaintiff's request [to dredge and fill 442 acres of marsh lands] are reasonably related to the preservation of the state's natural resources and the protection of the public trust in inland lakes and streams"); PAUL F. SCODARI, ENVIRONMENTAL LAW INSTITUTE, MEASURING THE BENEFITS OF THE FEDERAL WETLANDS PROGRAMS 49--73 (1997) (explaining the varying functions and the social value of wetlands). (200) Karen D. Boylan & Donald R. MacLean, Linking Species Loss with Wetlands Loss, NATIONAL WETLANDS NEWSL. (Envtl. Law Inst., Wash., D.C.), Nov.-Dec. 1997, at 17 (stating that the loss of wetlands will increase the rate of extinction of animals that are dependent on, or associated with, wetlands.); see also NATIONAL AUDUBON SOCIETY, VALUING WETLANDS; THE COST OF DESTROYING AMERICA'S WETLANDS (Deanne Kloepfer ed., 1994) (giving an economic value of species dependent on wetlands and a valuation of the costs avoided by maintaining wetlands); Lois Schiffer & Jeremy D. Heep, Forests, Wetlands and the Superfund: Three Examples of Environmental Protection Promoting Jobs, 22 J. CORP. L. 571, 588-92 (1997) (citing statistics showing that wetlands have extraordinary economic benefits for commercial industries, recreation, and subsistence and stating that the cost of foregoing wetlands protection is high because wetlands serve to purify drinking water, reduce flood damage, and provide habitats for numerous species). (201) Sabine River Auth., 951 F.2d at 672. (202) Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir. 1999) ("[W]e find (once again) that the destruction of migratory bird habitat and the attendant decrease in the populations of these birds `substantially affects' interstate commerce."); Leslie Salt Co. v. United States, 55 F.3d 1388, 1395-96 (9th Cir. 1995) (citing Riverside Bayview Homes, 474 U.S. at 131-35); Hoffman Homes, Inc. v. Environmental Protection Agency, 999 F.2d 256, 261 (7th Cir. 1993) ("Throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping and observing migratory birds. Yet the cumulative loss of wetlands has reduced populations of many bird species and consequently the ability of people to hunt, trap, and observe those birds." (footnote and citations omitted)). (203) No. C.A. 86-1496, 1995 WL 941370 (R.I. Superior Ct. Jan. 5, 1995) (appeal pending). (204) Id. at *3; see also Gillen v. City of Neenah, 580 N.W.2d 628 (Wis. 1998) (finding that a violation of state public trust doctrine protecting navigable waters is a public nuisance that may be challenged by any person). (205) See, e.g., Wilson v. Commonwealth, 583 N.E.2d 894, 901 (Mass. App. Ct.), affd, 597 N.E.2d 43 (Mass. 1992) ("[I]f the coastal areas in question are impressed with a public trust .... the plaintiffs, from the outset, have had only qualified rights ... and have no reasonable investment-backed expectations under which to mount a takings challenge."); Karam v. New Jersey Dep't of Envtl. Protection, 705 A.2d 1221, 1228 (N.J. Super. Ct. App. Div. 1998) ("[T]he sovereign never waives its right to regulate the use of public trust property."), aff'd, 723 A. 2d 943 (N.J. 1999); Orion v. State, 747 P.2d 1062, 1073 (Wash. 1987) (en banc) (holding that the landowner "could make no use of the land which would substantially impair the [public] trust"); see also Montana Coalition for Stream Access v. Curran, 682 P.2d 163, 171 (Mont. 1984) (holding that there was no taking of surface waters held in the public trust irrespective of stream bed ownership). (206) Coastal Petroleum v. Chiles, 701 So 2d 619, 624 (Fla. Dist. Ct. App. 1997), rev. denied, 707 So. 2d 1123 (Fla.), cert. denied, 118 S. Ct. 2369 (1998). (207) See, e.g., Matthews v. Bay Head Improvement Ass'n, 471 A. 2d 355, 363 (N.J. 1984) (holding that the landowner must provide access to beach areas subject to the public trust doctrine); National Audubon Soc'y v. Superior Court, 658 P.2d 709, 722 (Cal. 1983) (holding that the public trust doctrine provided an independent basis for challenging water diversions.). (208) 201 N.W.2d 761 (Wis. 1972). (209) Id. at 768; see Zealy v. City of Waukesha, 548 N.W.2d 528, 534 (Wis. 1996) (finding no taking without dealing with the background principles issue, but specifically noting that "[n]othing in this opinion limits our holding in Just"). (210) See, e.g., BOSSELMAN ET AL., supra note 39, at 309; ROBERT MELTZ ET AL., THE TAKINGS ISSUE, CONSTITUTIONAL LIMITS ON LAND USE CONTROL AND ENVIRONMENTAL REGULATION 377 (1999). (211) BOSSELMAN ET AL., supra note 39, at 309-13. (212) MELTZ ET AL., supra note 210, at 377 (stating that "[a]t least in those states in which the doctrine is well-established, it would seem to qualify" as a background principle); see also Hope M. Babcock, Has the U.S. Supreme Court Finally Drained the Swamp of Takings Jurisprudence?, 19 HARV. ENVTL. L. REV. 1, 4, 45-46 & n.260 (1995); Blumm, supra note 106, at 176 n.37 ("[B]ackground principles may insulate all wetlands regulation from just compensation claims if courts scrutinize English common law wetland cases...."); Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 STAN. ENVTL. L.J. 247, 331 (1996); Jan Goldman-Carter, Protecting Wetlands and Reasonable Investment-Backed Expectations in the Wake of Lucas v. South Carolina Coastal Council, 29 LAND & WATER L. REV. 425, 447 & n.138 (1993); Sugameli, supra note 3, at 464-65 & n. 117. (213) McElfish, supra note 133, at t0,244. (214) Just, 201 N.W.2d at 766. (215) Id. at 764; WIS. STAT. ANN. [sections] 30.11 (West 1998). (216) 201 N.W.2d at 766. (217) Id. at 768. (218) Id. (219) Rowe v. Town of North Hampton, 553 A. 2d 1331, 1335 (N.H. 1989); accord Graham v. Estuary Properties, Inc., 399 So. 2d 1374, 1382 (Fla. 1981); New Hampshire Wetlands Bd. v. Marshall, 500 A.2d 685, 689 (N.H. 1985); Claridge v. New Hampshire Wetlands Bd., 485 A.2d 287, 290 (N.H. 1984); American Dredging Co. v. State Dep't of Envtl. Protection, 391 A. 2d 1265, 1271 (N.J. Super. Ct. Ch. Div. 1978) affd, 404 A.2d 42 (N.J. Super. Ct. App. Div. 1979) (agreeing with the Just court's analysis); see also Pope v. City of Atlanta, 249 S.E.2d 16, 20 (Ga. 1978) (stating, in rejecting a takings claim regarding river corridor property, that the Just analysis "buttresses our conclusion in this case"); Usdin v. State Dep't of Envtl. Protection, 414 A. 2d 280, 288-90 (N.J. Super. Ct. Law Div. 1980) (finding that a regulation forbidding construction was "a proper exercise of a police power to prevent a misuse of nature [and not a] compensable taking" when the property was in an area prone to flooding that could harm the public); Chokecherry Hills Estates, Inc. v. Deuel County, 294 N.W.2d 654, 657 (S.D. 1980) (citing with approval Just's statement that the "police power was properly exercised in preventing a public harm by protecting the natural environment of shorelands"). (220) M & I v. Town of Somers, 414 N.W.2d 824, 830 (Wis. 1987). (221) 314 S.E.2d 326 (S.C. 1984). (222) Id. at 329 (quoting Just, 201 N.W.2d at 768). (223) Id. (footnotes omitted). (224) 496 S.E.2d 643 (S.C. Ct. App. 1998), rev. granted, (Mar. 18, 1999). (225) Id. at 648. The applicability of Carter is clear: the court of appeals upheld the denial of a critical area wetland permit based upon evidence that there would be "an adverse environmental impact," and recognized that "critical areas provide food for the marine estuarine system, create a habitat for fish and shellfish, buffer high ground, and filter sediments and pollutants. Building bulkheads and adding fill to these lots would destroy the area permanently." Id. at 647; see also id. at 651 (O'Connor, J., dissenting) (reasoning that there was no taking because McQueen knew his lots were eroding and failed to act). (226) Id. at 649. (227) City of Riviera Beach v. Shillingburg, 659 So. 2d 1174, 1183 (Fla. Dist. Ct. App. 1995); see also Zealy v. City of Waukesha, 548 N.W.2d 528, 534 (Wis. 1996) (finding no taking on other grounds and declining to reach the issue of whether Just is a Lucas background principle, but specifically noting that "[n]othing in this opinion limits our holding in Just and cases following the rule"). (228) See In re Steuart Transportation Co., 495 F. Supp. 38, 40 (E.D. Va. 1980) ("[U]nder the public trust doctrine, the State... and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources."); Anna R. C. Caspersen, Comment, The Public Trust Doctrine and the Impossibility of "Takings" by Wildlife, 23 B.C. ENVTL. AFF. L. REV. 357 (1996); Gary D. Meyers, Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife, 19 ENVTL. L. 723 (1989); Deborah G. Musiker et al., The Public Trust and Parens Patriae Doctrines: Protecting Wildlife in Uncertain Political Times, 16 PUB. LAND L. REV. 87 (1995). (229) Lucas, 505 U.S. at 1031 (emphasis added) (citing RESTATEMENT (SECOND) OF Tom's [sections] 827 cmt. g (1979)). (230) Id. at 1029 (emphasis added). (231) See Zealy v. City of Waukesha, 548 N.W.2d at 535 ("'[W]etlands were once considered wasteland, undesirable.... But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature and are essential to the purity of the water in our lakes and streams.'") (quoting Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1992)); see also Paula C. Murray, Private Takings of Endangered Species as Public Nuisance: Lucas v. South Carolina Coastal Council and the Endangered Species Act, 12 UCLA J. ENVTL. L. & POL'Y 119, 157 (1993) (arguing that most of today's environmental hazards are included in the common-law definition of public nuisance). (232) Lucas, 505 U.S. at 1069-70 (Stevens, J., dissenting), (233) National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998). (234) Id. at 1048 (Wald, J.). (235) Id. at 1051. (236) Id. at 1058 (Henderson, J., concurring); see also Gibbs v. Babbitt, 31 F. Supp. 2d 531, 538 n.8 (E.D.N.C. 1998) (rejecting Commerce Clause challenge to the ESA, relying on congressional findings of species' esthetic, ecological, educational, historical, recreational, and scientific value) (appeal pending). (237) 505 U.S. at 1031 (citing RESTATEMENT (SECOND) OF TORTS [sections] 821B-D (1979)). (238) See RESTATEMENT (SECOND) OF TORTS [sections] 821B-D (1979). "A public nuisance is an unreasonable interference with a fight common to the general public." Id. [sections] 821B. "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." Id. [sections] 821D; see also Terry W. Frazier, Protecting Ecological Integrity Within the Balancing Function of Property Law, 28 ENVTL. L. 53, 92-94 (1998) (defining the "nuisance principle" as allowing use of one's property without interference with the use and enjoyment of neighboring properties). (239) See, e.g., Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161, 166-68 (1990) (applying a historical analysis to determine whether the landowner's proposed activities constituted a nuisance), vacated on other grounds, 18 F.3d 1560 (Fed. Cir. 1994). (240) See RESTATEMENT (SECOND) OF TORTS [sections] 821B(2)(b) & cmt. e (1979). (241) 505 U. S. at 1055-60 (Blackman, J., dissenting). (242) Id. at 1068-71 (Stevens, J., dissenting). (243) Id. at 1031 (Scalia, J. writing for the majority). (244) An intermediate state court decision that rejected this analysis and found a taking was reversed on other grounds. K & K Constr., Inc. v. Michigan Dep't of Natural Resources, 551 N.W.2d 413, 421 (Mich. Ct. App. 1996), rev'd on other grounds, 575 N.W.2d 531 (Mich.), cert. den/ed, 119 S. Ct. 60 (1998). (245) 848 F.2d 1502, 1507 (10th Cir. 1988). (246) Id. at 1507 (citing Unlawful Inclosures of Public Lands Act, 43 U.S.C. 1061-1066 (1988)). (247) 519 N.W.2d 367 (Iowa 1994). (248) Id. at 370-71. (249) Id. at 371. (250) Id. (251) Id. (252) 505 U.S. at 1029. The other example is discussed in note 196, supra, and accompanying text. (253) Id. (254) Good v. United States, 189 F.3d 1355, 1362-63 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881). (255) See Wooten v. South Carolina Coastal Council, 510 S.E.2d 716, 718 (S.C. 1999); Grant v. South Carolina Coastal Council, 461 S.E.2d 388, 391 (S.C. 1995). (256) Alegria v. Keeney, 687 A.2d 1249, 1254 (R.I. 1997). (257) Virginia Beach v. Bell, 498 S.E.2d 414, 415 (Va.) (Coastal Primary Sand Dune Zoning Ordinance), cert. denied, 119 S. Ct. 73 (1998); Board of Supervisors of Prince William County v. Omni Homes, 481 S.E.2d 460, 465 (Va. 1997) (zoning restrictions). (258) 498 S.E.2d at 417. (259) Id. (260) Kim v. City of New York, 681 N.E.2d 312, 315-16 (N.Y.) (rejecting claim that city's regarding project constituted a taking), cert. denied, 522 U.S. 809 (1997); Gazza v. New York State Dep't of Envtl. Conservation, 679 N.E.2d 1035, 1039 (N.Y.) (rejecting claim that enforcement of preexisting statutory wetlands restriction was a taking), cert. denied, 522 U.S. 813 (1997); Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870, 872 (N.Y.) (rejecting claim that enforcement of preexisting steep-slope ordinance was a taking), cert. denied, 521 U.S. 1132 (1997); Basile v. Town of Southampton, 678 N.E.2d 489, 491 (N.Y.) (rejecting claim that enforcement of state Tidal Wetlands Act was a taking), cert. denied, 521 U.S. 1132 (1997). (261) 679 N.E.2d at 1040-41. (262) 678 N.E.2d at 871. (263) 681 N.E.2d at 315 (citations omitted). (264) Brotherton v. Department of Envtl. Conservation, 675 N.Y.S.2d 121, 122-23 (N.Y. App. Div. 1998) (noting that the corporation purchased the property in 1958 and sold it to the plaintiff in 1979, after the enactment of the Tidal Wetlands Act). (265) Outdoor Graphics v. City of Burlington, 103 F.3d 690, 694 (8th Cir. 1996) (rejecting claim that city's billboard ordinance constituted a taking); Hoeck v. City of Portland, 57 F.3d 781, 789 (9th Cir. 1995) (rejecting a takings claim regarding a city regulation concerning vacant structures). (266) Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 287 (4th Cir. 1998). A federal district court denied a takings claim under the Minnesota Constitution because the claimant purchased the property after it had notice of the challenged zoning ordinance. Superior-FCR Landfill, Inc. v. Wright County, 59 F. Supp. 2d 929 (D. Minn. 1999). A preexisting option to buy was not a preexisting property interest that rescued the takings claim. Id. (267) 47 F.3d 1148 (Fed. Cir. 1994). (268) Id. at 1154. (269) Id. at 1154-55; see also Bowman v. United States, 35 Fed. Cl. 397, 405-06 (1996) (stating that, even if the particular property forfeiture statute invoked against the plaintiff had not been enacted before his criminal activity began, his "expectation of compensability was necessarily informed" by the historical use of such statutes). (270) 100 F. 3d 1525 (Fed. Cir. 1996). The 1992 Preseault decision of the Court of Federal Claims reasoned "that Lucas acknowledged only limitations that inhere in one's title, be they state or federal, as well as limitations imposed by state property and nuisance law." Preseault v. United States, 27 Fed. Cl. 69, 89 (1992), rev'd, 100 F.3d 1525 (Fed. Cir. 1996). The appeal was initially heard by a three-judge panel, the majority of which agreed with the trial court on this issue and affirmed. Preseault v. United States, 66 F.3d 1167 (Fed. Cir. 1995) (opinion by Michel, J., joined by Schall, J.; dissenting opinion filed by Rader, J.). The panel opinion was vacated, the case was taken en banc, and additional briefing and argument was ordered. Preseault v. United States, 66 F.3d 1190 (Fed. Cir. 1995). The Federal Circuit's en banc decision reversed and found a physical taking. 100 F.3d at 1538-39. (271) "It is to the holdings of our cases, rather than their dicta, that we must attend .... " Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994). (272) Preseault, 100 F.3d at 1538. But see California Hous. Sec., Inc. v. United States, 959 F.2d 955, 958 (Fed. Cir. 1992) (finding that the plaintiff's expectations were shaped by federal savings and loan regulations). (273) Judge Plager's plurality opinion was joined by Judges Rich, Newman, and Mayer. Circuit Judge Rader's concurring opinion was joined by Judge Lourie. Judge Clevenger's dissenting opinion was joined by Judges Michel and Schall. Judge Rich has died, Judge Bryson (who was appointed by President Clinton) did not participate, and another Clinton appointee, Judge Gajarsa, subsequently joined the Federal Circuit. Richard Linn, nominated to replace the late Judge Rich, was confirmed by the U.S. Senate on November 19, 1999. The nomination of Timothy B. Dyk (nominated to replace Judge Archer, who went on senior status) is still pending. (274) See Abrahim-Youri v. United States, 139 F. 3d 1462 (Fed. Cir. 1997) (Plager, J.) (finding there was no taking where the United States settled the claims of several United States nationals), cert. denied, 118 S. Ct. 2366 (1998). (275) Id. at 1468; see also id. at 1469 (Clevenger, J., concurring) ("When one ventures into international commerce, it is with knowledge of the extent to which that market place is regulated .... "). (276) Forest Properties, Inc. v. United States, 177 F.3d 1360, 1364 (Fed. Cir. 1999) (citation omitted), cert. den/ed, 120 S. Ct. 373 (1999). (277) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 34 F. Supp. 2d 1226, 1251 (D. Nev. 1999) (appeal pending). (278) Roger Clegg, Reclaiming the Text of the Takings Clause, 46 S.C.L. REV. 531, 553 (1995). (279) Montana Envtl. Info. Ctr. v. Department of Envtl. Quality, 988 P.2d 1236 (Mont. 1999). (280) 189 F.3d 1355 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881). (281) 28 F.3d 1171, 1179 (Fed. Cir. 1994). (282) Good, 189 F.3d at 1361 (citing Loveladies Harbor). (283) Lucas, 505 U.S. at 1034 (Kennedy, J., concurring in the judgment). (284) Id. at 1015 (Scalia, J.). (285) See id. (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)). (286) See supra Part III.I. (287) See Daniel R. Mandelker, Investment-Backed Expectations in Takings Law, in TAKINGS: LAND-DEVELOPMENT CONDITIONS AND REGULATORY TAKINGS AFTER DOLAN AND LUCAS, supra note 104, at 102, 119, 122 (supporting the idea that regulations in effect at the time property is purchased affect the determination of reasonable investment-backed expectations); Robert M. Washburn, "Reasonable Investment-Backed Expectations" as a Factor in Defining Property Interest, 49 WASH. U. J. URB. & CONTEMP. L. 63, 69-71 (1996) (explaining how environmental regulations in existence at the time property is purchased affect the reasonableness prong of reasonable investment-backed expectations). (288) See, e.g., Good v. Unived States, 189 F.3d 1355, 1363 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881). In Good, the Army Corps of Engineers denied Mr. Good's wetlands permit based on provisions of the ESA, which was enacted shortly after he purchased the property in 1973. Id. at 1357, 1361, 1362. See also Leonard v. Town of Brimfield, 666 N.E.2d 1300, 1303 (Mass. 1996) (finding that the plaintiff had insufficient expectations even though claimant-purchaser was unaware of a restriction that was evident only on a single zoning map at the building inspector's office); Maine Land Use Regulation Comm'n v. White, 521 A.2d 710, 713 (Me. 1987) (finding no taking where property designated as deer yard was undevelopable and plaintiffs had purchased with notice of its status); Claridge v. New Hampshire Wetlands Bd., 485 A.2d 287, 292 (N.H. 1984) (finding no taking where plaintiff took with notice that "the property was subject to state wetlands statutes"); Mock v. Department of Envtl. Resources, 623 A.2d 940, 949-50 (Pa. Commw. Ct. 1993) (finding no taking where wetlands constituted riparian land that has been subject to regulation for centuries), aff'd, 667 A.2d 212 (Pa. 1995). (289) See MacLeod v. Santa Clara County, 749 F.2d 541, 547 (9th Cir. 1984) (reading Supreme Court precedent as "reject[ing] any contention that denial of the use of a portion of a parcel of property is so bound up with the investment-backed expectations of a claimant that government deprivation of the right to use a portion of the property in issue invariably constitutes a taking, irrespective of the impact of the restriction on the value of the parcel as a whole"). (290) See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937 (Tex. 1998) (finding the historical uses of a piece of property to be critically important in determining reasonable investment-backed expectations of the property owners), cert. denied, 119 S. Ct. 2018 (1999). In Mayhew, the fact that the zoning laws were not in effect when the property was purchased did not matter, because plaintiffs had purchased the property for and had used it as a ranch for four decades. Id. Therefore, the plaintiffs could not claim that their investment-backed expectations had been frustrated. Id.; see also Stevens v. City of Cannon Beach, 854 P.2d 449, 453-54 (Or. 1993) (citing Thornton v. Hay, 462 P.2d 671, 677 (Or. 1969)) (finding that the long history of public use of dry sand areas of beach property met the requirements of the doctrine of custom so as to make exclusivity of use not a part of the property owners' title when they acquired the land). (291) Mayhew, 964 S.W.2d at 937. (292) See Pro-Eco, Inc. v. Board of Comm'rs, 57 F.3d 505, 511 (7th Cir. 1995) (rejecting ProEco's takings claim on standing grounds, because when the government acted, Pro-Eco did not own the property, but rather only had an option to buy the property); Forest Properties, Inc. v. United States, 39 Fed. Cl. 56 (1997), aff'd on other grounds, 177 F.3d 1360 (Fed. Cir.) cert. denied, 120 S. Ct. 373 (1999); Brotherton v. Department of Envtl. Conservation, 675 N.Y.S. 2d 121, 122-23 (N.Y. App. Div. 1998). In Forest Properties, the Court of Federal Claims found the corporation lacked the necessary investment-backed expectations to support a takings claim, because the property had been subject to regulation when the corporation acquired the property. This was despite the fact that the corporation, which was ultimately owned by Richard Colburn, had acquired the property from another company also ultimately owned by Colburn that had acquired the property when environmental restrictions on the use of the property were less stringent. Id. at 60-61; see also Virginia Beach v. Bell, 498 S.E.2d 414 (Va.), cert. denied, 119 S. Ct. 73 (1998) (rejecting takings claim because the applicable law had been in effect when the plaintiff acquired the property). (293) Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust Fund, 508 U.S. 602, 645 (1993) (quoting Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 227 (1986)). (294) 505 U.S. at 1027. But see Bowles v. United States, 31 Fed. Cl. 37 (1994) (finding a taking based on the denial of a Clean Water Act section 404 wetland permit for property purchased after the Act's passage, because the property value was greatly decreased and the regulation interfered with plaintiff's reasonable investment-backed expectations). (295) See, e.g., 767 Third Ave. Assocs. v. United States, 48 F.3d 1575, 1581 (Fed. Cir. 1995) (holding that lessor cannot claim reasonable investment-backed expectations when it had been on notice that government could act to freeze tenant's assets even though such action was sudden, unexpected, and rare); Golden Pacific Bancorp v. United States, 15 F.3d 1066, 1074 (Fed. Cir. 1994) ("Given the highly regulated nature of the banking industry,... the Comptroller's actions [of placing Golden Pacific in receivership] could not possibly have interfered with a reasonable investment-backed expectation on the part of Golden Pacific."); Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244, 247 (1994) ("Given . . . the pervasive presence of the Federal Government in the regulation of American agriculture during the past half-century, plaintiffs cannot reasonably assert a property interest in their almond crops free of Government control."), aff'd, 73 F.3d 381 (Fed. Cir. 1995); Broughton Lumber Co. v. United States, 30 Fed. Cl. 239 (1994) (holding that a new total ban on hydropower projects did not effect a taking vis-a-vis an owner of water rights since, under prior regulatory regime, licensing of power projects had been highly selective); Bauer v. Waste Management of Connecticut, Inc., 662 A. 2d 1179, 1198 (Conn. 1995) (finding that where a landfill secured expansion permit from the state only to have the expansion defeated by a new municipal ordinance, there had been no taking because it had been a mere "gamble" to go forward with the plan in light of the pervasive regulatory climate in which waste disposers operate); Town of Esopus v. State, 631 N.Y.S.2d 213, 215 (N.Y. Ct. Cl. 1995) (holding that where the state refused to renew a landfill's license, the state had no duty to pay since a taking occurs "only if [the state's] actions destroyed a claimant's previously vested, unconditional right to use the land in a certain way and, even then, only if there is no other viable use to which the land can be put"). (296) 900 G Street Assocs. v. Department of Hous. & Community Dev., 430 A.2d 1387, 1390 (D.C. 1981). (297) Kalorama Heights Ltd. Partnership v. District of Columbia, 655 A.2d 865, 871-72 (D.C. 1995). (298) 467 U.S. 986 (1984). (299) Id. at 1005; see also Williams v. City of Central, 907 P.2d 701, 707 (Colo. Ct. App. 1995) ("[I]f the landowner has notice [at the time of purchase] of the extent of the government's regulatory authority over the property, the landowner's reasonable investment-backed expectation is the dispositive factor in the takings analysis."); Brunelle v. Town of South Kingstown, 700 A.2d 1075, 1083 (R.I. 1997) ("[W]e do not believe that compensation is required for the simple reason that Brunelle, when he purchased the lot, did so with full knowledge [of the restrictions]."); Buechel v. Department of Ecology, 884 P.2d 910, 918-19 (Wash. Ct. App. 1994) (finding that the landowner could not claim that state Shoreline Management Act diminished the value of his property as he had acquired it after the Act was enacted). (300) Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1177 (Fed. Cir. 1994) (citations omitted); accord Pro-Eco, Inc. v. Board of Comm'rs, 57 F.3d 505, 511 (7th Cir. 1995) (holding that a discounted price is presumed when a plaintiff buys restricted property: "Here, Pro-Eco has deliberately run into the Board's fist. Pro-Eco knew at the time it bought the land that the Board's ordinance would hinder their efforts to develop the land however they wished.... "); Creppel v. United States, 41 F.3d 627, 632 (Fed. Cir. 1994) ("One who buys with knowledge of a restraint assumes the risk of economic loss.... In such a case, the owner presumably paid a discounted price for the property. Compensating him for a `taking' could confer a windfall." (citations omitted)); Carson Harbor Village, Ltd. v. City of Carson, 37 F.3d 468, 476 (9th Cir. 1994) (finding no harm because plaintiffs purchase presumably reflected the impact of the existing city ordinance on value); see also Forest Properties, Inc. v. United States, 177 F.3d 1360, 1367 (Fed. Cir.) (rejecting investment-backed expectation claims because the property was purchased in 1988, years after the Corps's wetland guidelines went into effect), cert. denied, 120 S. Ct. 373 (1999); Avenal v. United States, 100 F.3d 933, 937-38 (Fed. Cir. 1996) ("[Plaintiffs] cannot have had reasonable investment-backed expectations that their oyster leases would give them rights protected from the planned freshwater diversion projects of the state and federal governments."). The Avenal court found that the plaintiffs had no right to be free from the planned and announced efforts of the Government to act in ways that would affect their uses of their after-acquired property interests. In light of the history of events in this case, plaintiffs as a matter of law must be assumed to have known that their rights to use the bottom-lands for oystering were subject to the inevitable changes that the anticipated government program would bring about. Id. at 938 (footnote omitted). (301) See Creppel, 41 F.3d at 632; Palm Beach Isles Assocs. v. United States, 42 Fed. Cl. 340, 357-58 (1998) (appeal pending). (302) 189 F.3d 1355 (Fed. Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999) (No. 99-881). (303) Id. at 1360 (citing Loveladies Harbor, 28 F.3d at 1179). (304) Id. at 1361. (305) Id. (306) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994). (307) 189 F.3d at 1361-62. (308) Id. at 1361. (309) Id. at 1362. (310) Id. at 1362-63. (311) Id. at 1362. (312) Id. at 1363 (discussing Deltona Corp. v. United States, 657 F.2d 1184, 1193 (Ct. Cl. 1981)); see also Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1070 (11th Cir. 1996) (finding no reasonable investment-backed expectations because the developer "attempted no use of the [property] for 11 years," by which time the proposed use was "contrary to general welfare concerns," and any expectations were "not backed by any investment other than his original purchase"), cert. denied, 522 U.S. 981 (1997). (313) See Good, 189 F.3d at 1361-63. (314) Ronald H. Rosenberg, The Non-Impact of the United States Supreme Court Regulatory Takings Cases on the State Courts: Does the Supreme Court Really Matter?, 6 FORDHAM ENVTL. L.J. 523, 545 (1995). (315) See State Dep't of Health v. The Mill, 887 P.2d 993 (Colo. 1994), reversing, 868 P.2d 1099 (Colo. App. 1993). (316) Id. at 1000-02. (317) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7 (1992); Lynn E. Blais, Takings, Statutes, and the Common Law: Considering Inherent Limitations on Title, 70 S. CAL. L. REV. 1, 55-58 (1996) (arguing that even when courts refuse to acknowledge statutes as background principles under Lucas, statutes are still considered in evaluating the claimant's investment-backed expectations). (318) Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 104-05 (1995) (analyzing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 134 (1978) (which found no taking when there is no reasonable expectation of developing a property interest before a regulation is in place)); see also Norman v. United States, 38 Fed. Cl. 417, 425 (1997) (granting government's summary judgment motion as to a portion of the property that the Army Corps of Engineers had redelineated as a wetland before plaintiff acquired it, because plaintiff could not have had the expectation of developing the property in the manner proposed). But see Formanek v. United States, 26 Cl. Ct. 332, 339 (1992) (holding that denial of a Clean Water Act section 404 permit can interfere with investment-backed expectations when the property is acquired prior to the enactment of the statute). (319) 69 F.3d 1571 (Fed. Cir. 1995). (320) Id. at 1578 (quoting LON FULLER, THE MORALITY OF LAW 60 (1964), as quoted in Landgraf v. USI Film Prods., 511 U.S. 244, 270 n.24 (1994)). (321) 505 U.S. at 1027 n. 14 (citations omitted) (citing Mugler v. Kansas, 123 U.S. 623 (1887)). (322) 16 U.S.C. [sections] 1538 (1994). (323) See id; see also Babbitt v. Sweet Home Chapter of Communities for a Greater Or., 515 U.S. 687, 691-97 (1995) (upholding Interior Department ESA regulations that are aimed at protecting species from harm by making it unlawful for any person to "take" any endangered or threatened species, by shooting, trapping, and a variety of other methods, including harm through significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering). (324) See 123 U.S. 623, 668-70 (1887); MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 38 (3d ed. 1997) ("Since wildlife protection regulations are directed at wildlife, rather than at land use per se, the door is left open to argue that the Fifth Amendment acts as less of a constraint on the government's regulatory powers when it acts to protect wildlife than when it acts for other purposes."); Robert Meltz, Where the Wild Things Are: The Endangered Species Act and Private Property, 24 ENVTL. L. 369, 404 (1994) ("[M]any ESA limitations on private defensive measures, not being `aimed at land,' may be constitutionally noncompensable with respect to their regulatory impact on real estate value."); see also Third & Catalina Assocs. v. City of Phoenix, 895 P.2d 115, 120 (Ariz. Ct. App. 1994) (rejecting a takings claim involving an ordinance requiring office buildings to be retrofitted with sprinkler systems and stating that the ordinance "is not a land use regulation"). (325) 444 U.S. 51 (1979). (326) 16 U.S.C. [sections] 668(a)-(d) (1994). (327) 16 U.S.C. [sections] 703 (1994). (328) 444 U.S. at 68. (329) Id. at 66-68. (330) 505 U.S. at 1027-28 (Scalia, J., writing for the majority); id. at 1069 (Stevens, J., dissenting) (citing Allard as authority for the view that legislatures, motivated in this instance by "[n]ew appreciation of the significance of endangered species," may revise common-law property rights); id. at 1076 (Souter, J., statement) (citing Allard as authority for his belief that the trial court's conclusion that the state by regulation had deprived the owner of his entire interest in the subject property was "highly questionable"). (331) Id. at 1027-28 (Scalia, J., writing for the majority) (citation omitted). (332) Fred P. Bosselman, Land as a Privileged Form of Property, in TAKINGS: LAND-DEVELOPMENT CONDITIONS AND REGULATORY TAKINGS AFTER DOLAN AND LUCAS, supra note 104, at 29, 32 (footnotes omitted) (quoting Frank L. Michelman, Property, Federalism, and Jurisprudence: A Comment on Lucas and Judicial Conservatism, 35 WM. & MARY L. REV. 301 (1993) (footnotes omitted)). (333) Id. at 29. (334) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 34 F. Supp. 2d 1226, 1251 (D. Nev. 1999) (appeal pending). (335) See Lucas, 505 U.S. at 1027-28. (336) United States v. Hill, 896 F. Supp. 1057, 1062-63 (D. Colo. 1995). (337) Burns Harbor Fish Co. v. Ralston, 800 F. Supp. 722, 726 (S.D. Ind. 1992). (338) Id. (citing Andrus v. Allard, 444 U.S. 51, 66-68 (1979)). Glenn P. Sugameli, Senior Counsel, Office of Federal and International Affairs, National Wildlife Federation, 1400 16th Street, N.W., Suite 501, Washington, D.C. 20036-2266; sugameli@nwf.org; (202) 797-6865. The author is a 1976 cum laude graduate of Princeton University's Woodrow Wilson School of Public and International Affairs (A.B.) and a 1979 graduate of the University of Virginia School of Law (J.D.), where he was a member of the Virginia Law Review. |
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